<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 1998
REGISTRATION NO. 333-63519
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 3
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ARCH COMMUNICATIONS GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
</TABLE>
DELAWARE 4812 31-1358569
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION OF CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
INCORPORATION OR
ORGANIZATION)
1800 WEST PARK DRIVE, SUITE 250
WESTBOROUGH, MASSACHUSETTS 01581
(508) 870-6700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
C. EDWARD BAKER, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ARCH COMMUNICATIONS GROUP, INC.
1800 WEST PARK DRIVE, SUITE 250
WESTBOROUGH, MASSACHUSETTS 01581
(508) 870-6700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JAY E. BOTHWICK, ESQ.
DAVID A. WESTENBERG, ESQ.
C/O HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box: [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration number of the effective registration statement for the same
offering. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PRELIMINARY COPY--DATED DECEMBER 15, 1998
[ARCH LETTERHEAD]
December , 1998
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Arch Communications Group, Inc., a Delaware corporation, to be held on January
, 1999 at 10:00 a.m., local time, at the offices of Hale and Dorr LLP, 60
State Street, Boston, Massachusetts 02109.
At the Special Meeting you will be asked to consider and vote upon two
related proposals which provide for the following:
1. The MobileMedia Proposal: The issuance of shares of Arch's Common
Stock, $.01 par value per share, shares of Arch's Class B Common Stock,
$.01 par value per share and rights and warrants to acquire shares of Arch
Common Stock pursuant to (x) an Agreement and Plan of Merger, dated as of
August 18, 1998, amended as of September 3, 1998 and as of December 1, 1998
(as amended, the "Merger Agreement"), among Arch, Farm Team Corp., a
Delaware corporation and a wholly owned subsidiary of Arch (the "Merger
Subsidiary"), MobileMedia Corporation, a Delaware corporation ("Parent")
which is currently operating as a debtor-in-possession under Chapter 11 of
the United States Bankruptcy Code, and MobileMedia Communications, Inc., a
Delaware corporation and wholly owned subsidiary of Parent which is also
currently operating as a debtor-in-possession under Chapter 11 ("MMC" and,
together with its subsidiaries, "MobileMedia"), (y) a related Third Amended
Joint Plan of Reorganization of Parent and MobileMedia under Chapter 11
dated as of December 1, 1998 (the "Amended Plan") and (z) certain separate
commitment letters dated as of August 18, 1998, amended as of September 3,
1998 and as of December 1, 1998 (collectively, as amended, the "Standby
Purchase Agreements"), among Arch, MMC and certain unsecured creditors of
Parent and MobileMedia (collectively, the "Standby Purchasers"). Pursuant
to the Amended Plan, Arch will contribute approximately $479.0 million in
cash for distribution to certain secured creditors of Parent and
MobileMedia in consideration of the discharge of their claims against
Parent and MobileMedia and Arch will issue 14,344,969 shares of Arch Common
Stock (the "Creditor Stock Pool") to the unsecured creditors of Parent and
MobileMedia (the "Unsecured Creditors") in consideration of the discharge
of their claims against Parent and MobileMedia. As additional consideration
for the discharge of the claims of the Unsecured Creditors and otherwise in
connection with the Merger Agreement and the Amended Plan, Arch will (a)
distribute to the Unsecured Creditors (the "Rights Offering") certain
transferable rights (the "Rights") to acquire 108,500,000 shares of Arch
Common Stock at a purchase price of $2.00 per share (the "Rights Shares");
(b) sell shares of Arch Common Stock and Arch Class B Common Stock pursuant
to the Standby Purchase Agreements to the Standby Purchasers also at a
price of $2.00 per share, to the extent that any of the Rights are not
otherwise exercised (subject to reduction by the Standby Purchasers to the
extent the Arch Stockholder Rights (as defined below) are exercised), and,
in consideration of such purchase commitments, Arch will distribute to the
Standby Purchasers warrants (the "Arch Participation Warrants") to acquire
up to 3,675,659 shares of Arch Common Stock at a fixed per share exercise
price equal to the amount that would result at September 1, 2001 from an
investment of $2.00 on the consummation of the Merger assuming a 20% per
annum internal rate of return (the "Warrant Exercise Price") and (c)
distribute (the "Arch Rights Offering") to the holders of shares of Arch
Common Stock and Series C Preferred Stock outstanding on a date to be
determined and announced by the Arch Board of Directors certain non-
transferable rights (the "Arch Stockholder Rights") to acquire up to
44,893,166 shares of Arch Common Stock at a price of $2.00 per share and,
to the extent such Arch Stockholder Rights are not exercised, Arch will
distribute in lieu thereof the Arch Participation Warrants to acquire an
equivalent number of shares of Arch Common Stock at the Warrant Exercise
Price.
<PAGE>
2. The Charter Amendment Proposal: Approval of an amendment to the
Restated Certificate of Incorporation of Arch (the "Arch Certificate") (i)
increasing the number of authorized shares of Arch Common Stock from
75,000,000 shares to 365,000,000 shares, 65,000,000 shares of which will be
designated Class B Common Stock and (ii) increasing the number of
authorized shares of Arch's Series B Junior Participating Preferred Stock,
$.01 par value per share, from 200,000 to 300,000 shares.
THE APPROVAL OF EACH OF THE MOBILEMEDIA PROPOSAL AND THE CHARTER AMENDMENT
PROPOSAL IS CONDITIONED UPON APPROVAL OF BOTH SUCH PROPOSALS. ACCORDINGLY, A
VOTE AGAINST EITHER OF THESE PROPOSALS WILL HAVE THE SAME EFFECT AS A VOTE
AGAINST BOTH SUCH PROPOSALS.
Pursuant to the Merger Agreement, upon the satisfaction or, if legally
permissible, waiver of the conditions to the closing set forth therein and in
the Amended Plan, MMC will be merged with and into the Merger Subsidiary (the
"Merger"). Immediately prior to the Merger, Parent will contribute all of its
assets to MMC, and in connection with the Merger MMC's subsidiaries will be
consolidated into a single subsidiary which will become an indirect wholly
owned subsidiary of Arch as a result of the Merger. If the MobileMedia
Proposal and the Charter Amendment Proposal each receive the requisite
approval of the stockholders of Arch and the other conditions to the Merger
are satisfied or, if legally permissible, waived, the Merger is expected to be
consummated in the first quarter of 1999.
In addition, at the Special Meeting you will be asked to consider and vote
upon an amendment to the Arch Certificate to effect a reverse stock split as
described in the attached Proxy Statement/Prospectus, an amendment to Arch's
1997 Stock Option Plan to increase the number of shares of Arch Common Stock
issuable thereunder and the approval of Arch's 1999 Employee Stock Purchase
Plan.
The MobileMedia Proposal, the Charter Amendment Proposal, the Stock Split
Proposal, the Option Plan Proposal and the Stock Purchase Plan Proposal are
more fully described in the accompanying Notice of Special Meeting of
Stockholders, Proxy Statement/Prospectus and the Annexes thereto, including
discussions therein concerning Arch's reasons for the Merger and the factors
which should be considered in connection with your vote on these proposals.
Please give this information your careful attention.
AFTER CAREFUL CONSIDERATION, THE BOARD OF DIRECTORS OF ARCH HAS UNANIMOUSLY
CONCLUDED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY
ARE FAIR TO, AND IN THE BEST INTERESTS OF, ARCH AND ITS STOCKHOLDERS AND
RECOMMENDS THAT YOU VOTE FOR THE MOBILEMEDIA PROPOSAL, THE CHARTER AMENDMENT
PROPOSAL, THE STOCK SPLIT PROPOSAL, THE OPTION PLAN PROPOSAL AND THE STOCK
PURCHASE PLAN PROPOSAL.
At the Special Meeting, holders of shares of Arch Common Stock and Series C
Preferred Stock will vote together as a single class. Each share of Arch
Common Stock is entitled to one vote on all matters presented at the Special
Meeting, and each share of Series C Preferred Stock is currently entitled to
18.5 votes on all such matters.
The presence, either in person or by proxy, of the holders of a majority of
the shares of Arch Common Stock and Series C Preferred Stock (calculated
assuming the conversion of the Series C Preferred Stock and voting together as
a single class) (as so calculated, the "Arch Voting Stock") issued and
outstanding and entitled to vote at the Special Meeting is necessary to
constitute a quorum at the Special Meeting.
The affirmative vote of shares of the Arch Voting Stock representing a
majority of the votes entitled to be cast in respect of the shares of Arch
Voting Stock present or represented at the Special Meeting (assuming a quorum
is present) is necessary to approve each of the matters to be considered at
the Special Meeting, except that the affirmative vote of shares of the Arch
Voting Stock representing a majority of all votes entitled to be cast is
necessary to approve the Charter Amendment Proposal and the Stock Split
Proposal. The Merger Agreement and the Merger will also require the
satisfaction or, if legally permissible, waiver of other conditions
<PAGE>
as described in the attached Proxy Statement/Prospectus. Holders of Arch
Common Stock and Series C Preferred Stock do not have rights of appraisal
under Delaware law in connection with the Merger.
Your vote is important regardless of the number of shares you own. We urge
you to read the enclosed materials carefully and then to complete, sign and
date the enclosed proxy card and return it promptly in the enclosed prepaid
envelope, whether or not you plan to attend the Special Meeting. Your prompt
cooperation and continued support of Arch is greatly appreciated.
Sincerely,
C. Edward Baker, Jr.,
Chairman of the Board and Chief
Executive Officer
<PAGE>
PRELIMINARY COPY--DATED DECEMBER 15, 1998
ARCH COMMUNICATIONS GROUP, INC.
1800 WEST PARK DRIVE, SUITE 250
WESTBOROUGH, MA 01581
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JANUARY , 1999
To the Stockholders of
Arch Communications Group, Inc.:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Arch
Communications Group, Inc., a Delaware corporation, will be held on January
, 1999 at 10:00 a.m., local time, at the offices of Hale and Dorr LLP, 60
State Street, Boston, Massachusetts 02109, for the following purposes:
To consider and vote upon five proposals more fully described in the
accompanying Proxy Statement/Prospectus and the Annexes thereto, which
provide for the following:
1. The MobileMedia Proposal: Approval of the issuance of shares of Arch's
Common Stock, $.01 par value per share, shares of Arch's Class B Common
Stock, $.01 par value per share and rights and warrants to acquire shares
of Arch Common Stock pursuant to (x) an Agreement and Plan of Merger, dated
as of August 18, 1998, amended as of September 3, 1998 and as of December
1, 1998 (as amended, the "Merger Agreement"), among Arch, Farm Team Corp.,
a Delaware corporation and a wholly owned subsidiary of Arch (the "Merger
Subsidiary"), MobileMedia Corporation, a Delaware corporation ("Parent")
which is currently operating as a debtor-in-possession under Chapter 11 of
the United States Bankruptcy Code, and MobileMedia Communications, Inc., a
Delaware corporation and wholly owned subsidiary of Parent which is also
currently operating as a debtor-in-possession under Chapter 11 ("MMC" and,
together with its subsidiaries, "MobileMedia"), (y) a related Third Amended
Joint Plan of Reorganization of Parent and MobileMedia dated as of December
1, 1998 (the "Amended Plan") and (z) certain separate commitment letters,
dated as of August 18, 1998, amended as of September 3, 1998 and as of
December 1, 1998, among Arch, MMC and certain unsecured creditors of Parent
and MobileMedia;
2. The Charter Amendment Proposal: Approval of an amendment to the
Restated Certificate of Incorporation of Arch (the "Arch Certificate") (i)
increasing the number of authorized shares of Arch Common Stock from
75,000,000 to 365,000,000 shares, 65,000,000 shares of which will be
designated Class B Common Stock and (ii) increasing the number of
authorized shares of Arch's Series B Junior Participating Preferred Stock,
$.01 par value per share, from 200,000 to 300,000 shares;
3. The Stock Split Proposal: Approval of an amendment to the Arch
Certificate to effect a reverse stock split;
4. The Option Plan Proposal: Approval of an amendment to Arch's 1997
Stock Option Plan to increase the number of shares of Arch Common Stock
issuable under such plan from 1,500,000 to 6,000,000 shares;
5. The 1999 Employee Stock Purchase Plan: Approval of Arch's 1999
Employee Stock Purchase Plan; and
to transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof.
THE APPROVAL OF EACH OF THE MOBILEMEDIA PROPOSAL AND THE CHARTER
AMENDMENT PROPOSAL IS CONDITIONED UPON APPROVAL OF BOTH SUCH PROPOSALS.
ACCORDINGLY, A VOTE AGAINST EITHER OF THESE PROPOSALS WILL HAVE THE SAME
EFFECT AS A VOTE AGAINST BOTH SUCH PROPOSALS.
<PAGE>
Pursuant to the Merger Agreement, upon the satisfaction or, if legally
permissible, waiver of the conditions to the closing set forth therein and in
the Amended Plan, MMC will be merged with and into the Merger Subsidiary (the
"Merger"). Immediately prior to the Merger, Parent will contribute all of its
assets to MMC, and in connection with the Merger, MMC's subsidiaries will be
consolidated into a single subsidiary which will become an indirect wholly
owned subsidiary of Arch as a result of the Merger.
The Arch Board of Directors has fixed the close of business on Friday,
December 11, 1998 as the record date for the determination of Arch
stockholders entitled to notice of and to vote at the Special Meeting and any
adjournments or postponements thereof. The Arch Board of Directors will
announce the record date for the determination of Arch stockholders entitled
to receive certain warrants and/or rights, pursuant to the MobileMedia
Proposal and described in the accompanying Proxy Statement/Prospectus, at a
future date. The complete list of Arch stockholders entitled to vote at the
Special Meeting will be available for examination, for purposes pertaining to
the Special Meeting, by any stockholder of Arch entitled to vote at the
Special Meeting, at the principal executive offices of Arch, 1800 West Park
Drive, Suite 250, Westborough, Massachusetts 01581, for ten days prior to the
Special Meeting.
At the Special Meeting, holders of shares of Arch Common Stock and holders
of shares of Arch's Series C Convertible Preferred Stock ("Series C Preferred
Stock") will vote together as a single class. Each share of Arch Common Stock
is entitled to one vote on all matters presented at the Special Meeting, and
each share of Series C Preferred Stock is currently entitled to 18.5 votes on
all such matters.
The presence, either in person or by proxy, of the holders of a majority of
the shares of Arch Common Stock and Series C Preferred Stock (calculated on an
as-converted basis, assuming conversion of all convertible securities, and
voting together as a single class)(as so calculated, the "Arch Voting Stock")
issued and outstanding and entitled to vote at the Special Meeting is
necessary to constitute a quorum at the Special Meeting.
Assuming a quorum is present, the affirmative vote of shares of Arch Voting
Stock representing a majority of the votes entitled to be cast in respect of
the shares of Arch Voting Stock present or represented at the Special Meeting
is necessary to approve each of the matters to be considered at the Special
Meeting, except that the affirmative vote of shares of Arch Voting Stock
representing a majority of all votes entitled to be cast is necessary to
approve the Charter Amendment Proposal and the Stock Split Proposal. Holders
of Arch Common Stock and Series C Preferred Stock do not have rights of
appraisal under Delaware law in connection with the Merger.
All Arch stockholders are cordially invited to attend the Special Meeting in
person. However, to ensure your representation at the Special Meeting, you are
urged to sign and return the enclosed proxy card as promptly as possible in
the enclosed postage prepaid envelope.
By order of the Board of Directors,
Garry B. Watzke, Secretary
December , 1998
Westborough, MA
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE PROMPTLY
COMPLETE, DATE, SIGN AND RETURN THE ENCLOSED PROXY CARD IN THE ACCOMPANYING
ENVELOPE. NO POSTAGE NEED BE AFFIXED IF THE PROXY CARD IS MAILED IN THE UNITED
STATES.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROXY STATEMENT/PROSPECTUS SHALL NOT CONSTITUTE AN +
+OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY +
+SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR +
+SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE +
+SECURITIES LAWS OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION--DATED DECEMBER 15, 1998
ARCH COMMUNICATIONS GROUP, INC.
1800 WEST PARK DRIVE, SUITE 250
WESTBOROUGH, MA 01581
----------
PROXY STATEMENT/PROSPECTUS
----------
This Proxy Statement/Prospectus is being furnished to holders of Common
Stock, par value $.01 per share, and holders of Series C Convertible Preferred
Stock, par value $.01 per share, of Arch Communications Group, Inc., a Delaware
corporation, in connection with the solicitation of proxies by the Arch Board
of Directors for use at the Special Meeting of Arch stockholders to be held on
January , 1999, at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109, commencing at 10:00 a.m., local time, and at any
adjournments or postponements thereof.
At the Special Meeting, you will be asked to consider and vote upon the
following proposals (each more fully described herein):
1. The MobileMedia Proposal: Approval of the issuance of shares of Arch
Common Stock, shares of Arch's Class B Common Stock, $.01 par value per
share and warrants and rights to acquire shares of Arch Common Stock
pursuant to (x) an Agreement and Plan of Merger, dated as of August 18,
1998, amended as of September 3, 1998 and as of December 1, 1998 (as
amended, the "Merger Agreement"), among Arch, Farm Team Corp., a Delaware
corporation and a wholly owned subsidiary of Arch (the "Merger Subsidiary"),
MobileMedia Corporation, a Delaware corporation ("Parent") which is
currently operating as a debtor-in-possession under Chapter 11 of the United
States Bankruptcy Code, and MobileMedia Communications, Inc., a Delaware
corporation and wholly owned subsidiary of Parent which is also currently
operating as a debtor-in-possession under Chapter 11 ("MMC" and, together
with its subsidiaries, "MobileMedia"), (y) a related Third Amended Joint
Plan of Reorganization of Parent and MobileMedia under Chapter 11 dated
December 1, 1998 (the "Amended Plan") and (z) certain standby commitment
letters, dated as of August 18, 1998, amended as of September 3, 1998 and as
of December 1, 1998 (as amended, the "Standby Purchase Agreements"), among
Arch, MMC and certain unsecured creditors of Parent and MobileMedia;
2. The Charter Amendment Proposal: Approval of an amendment to the
Restated Certificate of Incorporation of Arch (the "Arch Certificate") (i)
increasing the number of authorized shares of Arch Common Stock from
75,000,000 to 365,000,000 shares, 65,000,000 shares of which will be
designated Class B Common Stock and (ii) increasing the number of authorized
shares of Arch's Series B Junior Participating Preferred Stock, $.01 par
value per share, from 200,000 to 300,000 shares;
3. The Stock Split Proposal: Approval of an amendment to the Arch
Certificate to effect a reverse stock split;
4. The Option Plan Proposal: Approval of an amendment to Arch's 1997 Stock
Option Plan to increase the number of shares of Arch Common Stock issuable
under such plan from 1,500,000 to 6,000,000 shares;
5. The 1999 Employee Stock Purchase Plan Proposal: Approval of Arch's 1999
Employee Stock Purchase Plan; and
such other business as may properly come before the Special Meeting or any
adjournments or postponements thereof.
THE APPROVAL OF EACH OF THE MOBILEMEDIA PROPOSAL AND THE CHARTER AMENDMENT
PROPOSAL IS CONDITIONED UPON APPROVAL OF BOTH SUCH PROPOSALS. ACCORDINGLY, A
VOTE AGAINST EITHER OF THESE PROPOSALS WILL HAVE THE SAME EFFECT AS A VOTE
AGAINST BOTH SUCH PROPOSALS.
This Proxy Statement/Prospectus also constitutes a prospectus of Arch with
respect to the issuance, pursuant to the MobileMedia Proposal, of (i) up to
44,893,166 rights to acquire Arch Common Stock (the "Arch Stockholder Rights"),
(ii) up to 44,893,166 warrants to purchase Arch Common Stock that may be issued
to Arch stockholders pursuant to the Merger Agreement in lieu of the foregoing
Arch Stockholder Rights to the extent that such Arch Stockholder Rights are not
exercised and (iii) up to 44,893,166 shares of Arch Common Stock issuable upon
exercise of such Arch Stockholder Rights or warrants issued in lieu thereof.
The terms of such rights and warrants are described in detail under
"Description of Arch Securities".
Pursuant to the Merger Agreement, upon the satisfaction or, if legally
permissible, waiver of the conditions to the closing set forth therein and in
the Amended Plan, MMC will be merged with and into the Merger Subsidiary (the
"Merger"). Immediately prior to the Merger, Parent will contribute all of its
assets to MMC, and in connection with the Merger MMC's subsidiaries will be
consolidated into a single subsidiary which will become an indirect wholly
owned subsidiary of Arch as a result of the Merger. The total number of shares
of Arch Common Stock and Arch Class B Common Stock (collectively, "Arch
Combined Common Stock") which will be issued to unsecured creditors of Parent
and MobileMedia upon the effectiveness of the Merger is 122.8 million shares,
or approximately 82.7% of the total number of shares of Arch Common Stock
outstanding (assuming the conversion of all Arch convertible securities).
On December 11, 1998, the record date for determination of stockholders of
Arch entitled to vote at the Special Meeting (the "Record Date"), there were
outstanding and entitled to vote an aggregate of 21,067,110 shares of Arch
Common Stock and 250,000 shares of Series C Preferred Stock. Each share of Arch
Common Stock entitles the record holder thereof to one vote, and each share of
Series C Preferred Stock currently entitles the record holder thereof to 18.5
votes on each of the matters to be voted upon at the Special Meeting. See
"Description of Arch Securities--Arch Series C Preferred Stock".
This Proxy Statement/Prospectus and the accompanying form of proxy are first
being mailed to stockholders of Arch on or about December , 1998. All
information contained in this Proxy Statement/Prospectus relating to Arch has
been supplied by Arch, and all information relating to Parent and MobileMedia
has been supplied by MobileMedia.
----------
SEE "RISK FACTORS" BEGINNING ON PAGE 15 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY ARCH STOCKHOLDERS.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------
THE DATE OF THIS PROXY STATEMENT/PROSPECTUS IS , 1998.
<PAGE>
TABLE OF CONTENTS
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PROSPECTUS SUMMARY........................................................ 1
The Companies........................................................... 1
Arch.................................................................. 1
MobileMedia........................................................... 2
The Combined Company.................................................... 3
The Merger and the Reorganization....................................... 3
The Proposed Transaction.............................................. 3
Stockholdings Before and After the Merger............................. 5
The Merger............................................................ 6
The Reorganization.................................................... 6
Recommendation of the Arch Board...................................... 6
Opinion of Arch's Financial Advisor................................... 6
Interests of Certain Persons in the Merger............................ 7
Effective Time of the Merger.......................................... 7
Board of Directors of Arch upon the Merger............................ 7
Regulatory Approvals.................................................. 7
Conditions to the Merger.............................................. 8
Termination; Amendment and Waiver..................................... 8
Appraisal Rights...................................................... 9
Material Federal Income Tax Consequences of the Merger................ 9
Accounting Treatment.................................................. 9
Restrictions on Resale of Securities Issued in the Merger;
Registration Rights.................................................. 9
The Special Meeting..................................................... 10
Date and Place of the Special Meeting................................. 10
Stockholders Entitled to Vote......................................... 10
Purpose of the Special Meeting........................................ 10
Vote Required......................................................... 10
Risk Factors............................................................ 11
The Arch Rights Offering................................................ 11
FORWARD-LOOKING STATEMENTS................................................ 14
RISK FACTORS.............................................................. 15
Uncertainties Related to the Merger and the Reorganization.............. 15
Challenges of Business Integration.................................... 15
Certain Risks Associated with the Merger.............................. 15
Transaction Costs..................................................... 15
Substantial Amortization Charges...................................... 16
Use of Pro Forma Assumptions.......................................... 16
Possible Adverse Effect on Market Price of Common Stock of Shares
Eligible for Future Sale............................................. 16
Possible Inability to Exercise Arch Participation Warrants............ 16
Risks Common to Arch and MobileMedia.................................... 16
Growth and Acquisition Strategy....................................... 16
Future Capital Needs; Uncertainty of Additional Funding............... 17
Competition and Technological Change.................................. 17
Government Regulation, Foreign Ownership and Possible Redemption...... 18
High Degree of Leverage After the Merger.............................. 20
Subscriber Turnover................................................... 20
Dependence on Third Parties........................................... 20
Possible Acquisition Transactions..................................... 21
</TABLE>
i
<PAGE>
<TABLE>
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PAGE
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Dependence on Key Personnel........................................... 21
Impact of the Year 2000 Issue......................................... 21
Arch................................................................ 21
MobileMedia......................................................... 22
No Dividends.......................................................... 23
History of Losses..................................................... 23
Volatility of Trading Price........................................... 24
Risks Relating to the Unaudited Combined Company Projections.......... 24
Material Federal Income Tax Considerations; Possible Loss of Corporate
Tax Benefits......................................................... 25
Risks Related to Arch................................................... 25
Arch's Indebtedness and High Degree of Leverage....................... 25
Merger Cash Requirements.............................................. 25
API Credit Facility, Bridge Facility and Indenture Restrictions....... 26
Possible Fluctuations in Revenues and Operating Results............... 26
Risk of Arch Common Stock being Delisted from the Nasdaq National
Market............................................................... 27
Divisional Reorganization of Arch..................................... 27
Anti-Takeover Provisions.............................................. 27
Risks Related to MobileMedia............................................ 28
Disruption of Operations Prior to and Following Bankruptcy Filing..... 28
Assumptions Regarding Value of MobileMedia Assets..................... 28
Risks Related to the Rights Offering.................................... 28
Market Risks in Exercising Rights..................................... 28
Dilution.............................................................. 28
Material Federal Income Tax Considerations............................ 28
DILUTION.................................................................. 29
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OPERATING DATA--ARCH....... 30
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OPERATING DATA--
MOBILEMEDIA.............................................................. 32
UNAUDITED SELECTED PRO FORMA CONSOLIDATED FINANCIAL DATA.................. 34
COMPARATIVE PER SHARE DATA................................................ 35
MARKET PRICE INFORMATION AND DIVIDEND POLICY.............................. 36
STOCKHOLDINGS BEFORE AND AFTER THE MERGER................................. 37
THE SPECIAL MEETING....................................................... 38
General................................................................. 38
Purpose of the Special Meeting.......................................... 38
Arch Board of Directors Recommendation.................................. 38
Date, Time and Place.................................................... 38
Record Date; Shares Outstanding......................................... 38
Voting at the Special Meeting........................................... 39
Solicitation of Proxies................................................. 39
Effect of Abstentions and "Broker Non-Votes"............................ 40
Appraisal Rights........................................................ 40
ITEM 1 -- THE MOBILEMEDIA PROPOSAL........................................ 41
Background of the Merger................................................ 41
Arch Reasons for the Merger............................................. 44
Recommendation of the Arch Board of Directors........................... 45
Opinion of Arch's Financial Advisor..................................... 46
Pro Forma Company Trading Analysis.................................... 47
Contribution Analysis................................................. 48
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MobileMedia Reasons for the Merger....................................... 49
Interests of Certain Persons in the Merger............................... 52
Accounting Treatment..................................................... 52
The Arch Rights Offering................................................. 52
Material Federal Income Tax Consequences................................. 52
The Merger............................................................. 53
Regulatory Approvals..................................................... 55
FCC Approval........................................................... 55
State Approvals........................................................ 57
Antitrust.............................................................. 57
Federal Securities Law Consequences...................................... 57
Nasdaq National Market Listing........................................... 58
Appraisal Rights......................................................... 58
THE MERGER AGREEMENT....................................................... 59
The Merger............................................................... 59
Effect of the Merger..................................................... 59
Representations and Warranties........................................... 59
Certain Covenants and Agreements......................................... 59
Best Efforts........................................................... 60
Approvals, Consents.................................................... 60
Arch Not to Control.................................................... 60
Bankruptcy Covenants................................................... 60
Conduct of MobileMedia's Business Pending the Merger................... 61
Conduct of Arch's Business Pending the Merger.......................... 61
Notice of Breaches..................................................... 62
Exclusivity Provisions................................................. 62
Break-up Fee Provisions................................................ 64
Nasdaq National Market Quotation....................................... 65
Delivery of Financial Statements....................................... 65
Full Access............................................................ 65
Stockholder Approval; Special Meeting.................................. 66
Preparation of Proxy Statement/Prospectus and Disclosure Statement..... 66
Application of MobileMedia Tower Sale Proceeds......................... 66
FCC Filing............................................................. 66
Indemnification; Directors and Officers Insurance...................... 67
State Takeover Laws.................................................... 67
Employees.............................................................. 68
Effects of Arch's Rights Agreement..................................... 68
Rights Offering; Registration Statement................................ 68
Arch Rights Offering; Registration Statement........................... 68
Reimbursement of Arch's Expenses....................................... 69
Conditions............................................................... 69
Termination.............................................................. 71
Amendment and Waiver..................................................... 72
Related Agreements....................................................... 73
Standby Purchase Agreements............................................ 73
Registration Rights Agreements......................................... 76
Warrant Agreements..................................................... 77
Related Matters After the Merger......................................... 77
THE MOBILEMEDIA PLAN OF REORGANIZATION..................................... 78
The Amended Plan......................................................... 78
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Executory Contracts..................................................... 80
Implementation of Plan.................................................. 80
Conditions to Effectiveness of the Plan................................. 81
Discharge............................................................... 81
Releases and Indemnification............................................ 81
Jurisdiction............................................................ 82
THE COMBINED COMPANY...................................................... 83
Overview................................................................ 83
Strategy................................................................ 83
Unaudited Financial Projections and Operational Cost Synergies.......... 84
Assumptions Used in the Unaudited Financial Projections................. 84
UNAUDITED COMBINED COMPANY PROJECTED BALANCE SHEETS....................... 87
UNAUDITED COMBINED COMPANY PROJECTED STATEMENTS OF OPERATION.............. 88
UNAUDITED COMBINED COMPANY PROJECTED STATEMENT OF CASH FLOW............... 89
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS .......... 91
ARCH COMMUNICATIONS GROUP, INC. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
BALANCE SHEET............................................................ 92
ARCH COMMUNICATIONS GROUP, INC. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED
STATEMENT OF OPERATIONS.................................................. 93
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.. 95
THE ARCH RIGHTS OFFERING.................................................. 97
Terms of the Arch Rights Offering....................................... 97
Subscription Agent...................................................... 97
Information Agent....................................................... 98
Method of Exercise of Arch Stockholder Rights........................... 98
Payment for Shares...................................................... 98
Dilution................................................................ 100
Use of Proceeds......................................................... 100
No Revocation........................................................... 100
Non-Transferable Rights................................................. 100
Arch Participation Warrants............................................. 100
Foreign and Certain Other Holders....................................... 100
INDUSTRY OVERVIEW......................................................... 101
General................................................................. 101
Paging and Messaging Services........................................... 102
Competition............................................................. 102
Regulation.............................................................. 103
Federal Regulation.................................................... 103
State Regulation...................................................... 106
BUSINESS.................................................................. 107
Arch.................................................................... 107
Business Strategy..................................................... 107
Paging and Messaging Services, Products and Operations................ 108
Investments in Narrowband PCS Licenses................................ 110
Subscribers and Marketing............................................. 111
Competition........................................................... 112
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Regulation............................................................ 112
Sources of Equipment.................................................. 112
Employees............................................................. 112
Trademarks............................................................ 112
Properties............................................................ 112
Litigation............................................................ 113
Arch Management......................................................... 113
Directors and Executive Officers...................................... 113
Certain Relationships and Related Transactions........................ 115
Board Committees...................................................... 115
Indemnification and Director Liability................................ 115
Arch Executive Compensation............................................. 116
Summary Compensation Table............................................ 116
Executive Retention Agreements........................................ 117
Stock Option Grants................................................... 117
Option Exercises and Year-End Option Table............................ 118
Compensation Committee Interlocks and Insider Participation........... 118
Principal Stockholders.................................................. 119
Arch Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................. 120
Overview.............................................................. 120
Shift in Operating Focus.............................................. 123
Divisional Reorganization............................................. 123
ACE/USAM Merger....................................................... 124
Results of Operations................................................. 124
Liquidity and Capital Resources....................................... 128
Recent and Pending Accounting Pronouncements.......................... 130
MobileMedia............................................................. 131
Business Strategy..................................................... 131
Paging and Messaging Services Products and Operations................. 131
Networks and Licenses................................................. 133
Sales and Marketing................................................... 134
Competition........................................................... 135
Regulation............................................................ 135
Sources of Equipment.................................................. 135
Employees............................................................. 135
Trademarks............................................................ 135
Properties............................................................ 135
Events Leading Up To MobileMedia's Bankruptcy Filings................. 136
Litigation............................................................ 138
MobileMedia Management's Discussion and Analysis of Financial Condition
and Results of Operations.............................................. 140
Presentation of Financial Condition and Results of Operations......... 140
Overview.............................................................. 140
Pending FCC Action Against MobileMedia................................ 141
Results of Operations................................................. 143
Liquidity and Capital Resources....................................... 150
Risks Relating to Year 2000........................................... 153
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DESCRIPTION OF ARCH SECURITIES............................................ 156
Arch Common Stock....................................................... 156
Class B Common Stock.................................................... 156
Arch Preferred Stock.................................................... 156
Arch Series C Preferred Stock........................................... 157
Arch Participation Warrants............................................. 157
Foreign Ownership Restrictions.......................................... 158
Anti-Takeover Provisions................................................ 158
Rights Plan........................................................... 159
Classified Board of Directors......................................... 160
Stockholder Actions and Meetings...................................... 160
Amendment of Certain Provisions of the Arch Certificate and Arch By-
laws................................................................. 160
Consideration of Non-Economic Factors in Acquisitions................. 160
Restrictions on Certain Purchases of Stock by Arch.................... 160
"Blank Check" Preferred Stock......................................... 161
Delaware Anti-Takeover Statute........................................ 161
Director Liability and Indemnification................................ 161
Transfer Agent and Registrar............................................ 162
Registration Rights..................................................... 162
DESCRIPTION OF CERTAIN ARCH INDEBTEDNESS.................................. 163
API Credit Facility..................................................... 163
Bridge Facility......................................................... 163
ACI 9 1/2% Notes........................................................ 164
ACI 14% Notes........................................................... 166
ACI 12 3/4% Notes....................................................... 167
Arch Discount Notes..................................................... 168
Arch Convertible Debentures............................................. 170
ITEM 2--CHARTER AMENDMENT PROPOSAL........................................ 172
Arch Board Recommendation............................................... 172
ITEM 3--APPROVAL OF STOCK SPLIT PROPOSAL.................................. 173
Purpose of the Reverse Split............................................ 173
Effect of the Reverse Split............................................. 174
Exchange of Stock Certificates.......................................... 175
Material Federal Income Tax Consequences of the Reverse Split........... 175
Arch Board Recommendation............................................... 176
ITEM 4--APPROVAL OF AN AMENDMENT TO ARCH'S 1997 STOCK OPTION PLAN......... 177
Summary of the Plan..................................................... 177
Federal Income Tax Consequences......................................... 178
Incentive Stock Options............................................... 178
Non-Statutory Options................................................. 179
Delivery of Common Stock Upon Exercise of Stock Options............... 179
Maximum Income Tax Rate on Capital Gain and Ordinary Income........... 179
Tax Consequences to Arch.............................................. 179
Withholding........................................................... 180
Arch Board Recommendation............................................... 180
ITEM 5--APPROVAL OF THE 1999 EMPLOYEE STOCK PURCHASE PLAN................. 181
Summary of the Plan..................................................... 181
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Federal Income Tax Consequences.......................................... 182
Tax Consequences to Participants....................................... 182
Tax Consequences To Arch............................................... 182
LEGAL MATTERS.............................................................. 183
EXPERTS.................................................................... 183
STOCKHOLDER PROPOSALS...................................................... 183
OTHER MATTERS.............................................................. 184
GLOSSARY OF CERTAIN DEFINED TERMS.......................................... 185
INDEX TO FINANCIAL STATEMENTS.............................................. F-1
ANNEX A: AGREEMENT AND PLAN OF MERGER (COMPOSITE COPY)..................... A-1
ANNEX B: OPINION OF BEAR, STEARNS & CO. INC. .............................. B-1
ANNEX C: DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION............... C-1
ANNEX D: CHARTER AMENDMENT................................................. D-1
ANNEX E: STOCK SPLIT AMENDMENT............................................. E-1
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AVAILABLE INFORMATION
Arch is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission.
Parent and MMC are also subject to the informational requirements of the
Exchange Act but have filed only limited reports since the commencement of
their bankruptcy proceedings in January 1997. See "Business--MobileMedia--
Events Leading up to MobileMedia's Bankruptcy Filings". Financial statements
included in Parent's and MMC's periodic reports from February 1997 through
June 1998 have not been prepared in accordance with generally accepted
accounting principles due to Parent's and MMC's inability at the time of such
filings to determine the amount of an impairment loss related to long-lived
assets pursuant to Financial Accounting Standard No. 121, are unaudited and
have been revised periodically based on subsequent determinations of changes
in facts and circumstances impacting previously filed unaudited financial
statements. The audited financial statements of MobileMedia included herein
reflect adjustments from the unaudited statements, including but not limited
to an impairment adjustment of $792.5 million recorded as of December 31,
1996. The reports, proxy statements and other information filed with the SEC
by Arch and, to the extent available, by Parent and MMC, can be inspected and
copied at the public reference facilities maintained by the SEC at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the following Regional
Offices of the SEC: Seven World Trade Center, Suite 1300, New York, New York
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material also can be obtained at prescribed
rates from the Public Reference Section of the SEC, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Information on the operation of the SEC's public
reference room is available by calling the SEC at 1-800-SEC-0330. In addition,
Arch, Parent and MMC are required to file electronic versions of these
documents with the SEC through the SEC's Electronic Data Gathering, Analysis
and Retrieval system. The SEC maintains a World Wide Web site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
Arch Common Stock is traded on the Nasdaq National Market under the symbol
"APGR" and Arch maintains a World Wide Web site at http://www.arch.com. Arch's
web site is not a part of this Proxy Statement/Prospectus. Reports and other
information filed by Arch can also be inspected at the offices of the National
Association of Securities Dealers, Inc., Reports Section, 1735 K Street, N.W.,
Washington, D.C. 20006. Parent's Common Stock is not currently traded on any
exchange.
Arch has filed with the SEC a Registration Statement on Form S-4 (the
"Registration Statement") under the Securities Act of 1933, as amended with
respect to the securities offered hereby. As used herein the term
"Registration Statement" includes all amendments, exhibits, annexes and
schedules thereto. As permitted by the rules and regulations of the SEC, this
Proxy Statement/Prospectus omits certain information, exhibits and
undertakings contained in the Registration Statement. For further information
with respect to Arch, Parent and MMC and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits
thereto and the financial statements, notes and schedules filed as a part
thereof. Statements contained in this Proxy Statement/Prospectus as to the
contents of any contract or other document are not necessarily complete, and
in each instance reference is made to the copy of such contract or document
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY ARCH, PARENT, MOBILEMEDIA OR ANY
OTHER PERSON. THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES, OR THE
SOLICITATION OF A PROXY, IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM IT
IS NOT LAWFUL TO MAKE ANY SUCH OFFER, SOLICITATION OF AN OFFER OR PROXY
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROXY
STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF ARCH, PARENT OR MOBILEMEDIA SINCE THE DATE HEREOF OR THAT
THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE
DATE HEREOF.
COPIES OF ARCH'S FILINGS WITH THE SEC MAY BE OBTAINED UPON WRITTEN OR ORAL
REQUEST WITHOUT CHARGE FROM ARCH COMMUNICATIONS GROUP, INC., 1800 WEST PARK
DRIVE, SUITE 250, WESTBOROUGH, MASSACHUSETTS 01581, ATTENTION: INVESTOR
RELATIONS, TELEPHONE (508) 870-6700. COPIES OF PARENT'S AND MMC'S FILINGS WITH
THE SEC MAY BE OBTAINED UPON WRITTEN OR ORAL REQUEST WITHOUT CHARGE FROM
MOBILEMEDIA CORPORATION, FORT LEE EXECUTIVE PARK, ONE EXECUTIVE DRIVE, SUITE
500, FORT LEE, NEW JERSEY 07024, ATTENTION: SECRETARY, TELEPHONE (201) 224-
9200. TO OBTAIN TIMELY DELIVERY, FILINGS MUST BE REQUESTED NO LATER THAN
, 1998.
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SUMMARY
The following is a summary of certain information contained elsewhere in this
Proxy Statement/Prospectus. Reference is made to, and this Summary is qualified
in its entirety by, the more detailed information contained in this Proxy
Statement/Prospectus and the Annexes hereto. Unless otherwise defined herein,
capitalized terms used in this Summary have the respective meanings ascribed to
them elsewhere in this Proxy Statement/Prospectus. See "Glossary of Certain
Defined Terms" beginning on page 185. None of the financial or share
information reflects the effect of a reverse stock split which may be effected
pursuant to the Stock Split Proposal. See "Item 3--Approval of Stock Split
Proposal". Stockholders are urged to read this Proxy Statement/Prospectus and
the Annexes hereto in their entirety.
THE COMPANIES
ARCH
Arch is a leading provider of wireless messaging services, primarily paging
services, and is the third largest paging company in the United States based on
pagers in service. Arch had 4.2 million pagers in service at September 30,
1998. Arch operates in 41 states and more than 180 of the 200 largest markets
in the United States. Arch offers local, regional and nationwide paging
services employing digital networks covering approximately 85% of the United
States population. Arch offers four types of paging services through its
networks: digital display, alphanumeric display, tone-only and tone-plus-voice.
Arch also offers enhanced and complementary services, including voice mail,
personalized greeting, message storage and retrieval, pager loss protection and
pager maintenance.
Arch has achieved significant growth in pagers in service through a
combination of internal growth and acquisitions. From January 1, 1995 through
September 30, 1998, Arch's total number of subscribers grew at a compound rate
on an annualized basis of 73.1%. For the same period on an annualized basis,
Arch's compound rate of internal subscriber growth (excluding pagers added
through acquisitions) was 52.8%. From commencement of operations in September
1986, Arch has completed 33 acquisitions representing an aggregate of 1.7
million pagers in service at the time of purchase.
Arch's strategic objective is to strengthen its position as one of the
leading nationwide paging companies in the United States. Arch believes that
larger, multi-market paging companies enjoy a number of competitive advantages,
including: (i) operating efficiencies resulting from more intensive utilization
of existing paging systems; (ii) economies of scale in purchasing and
administration; (iii) broader geographic coverage of paging systems; (iv)
greater access to capital markets and lower costs of capital; (v) the ability
to obtain additional radio spectrum; (vi) the ability to offer high-quality
services at competitive prices; and (vii) enhanced ability to attract and
retain management personnel. Arch believes that the current size and scope of
its operations afford it many of these advantages and that it has the scope and
presence to effectively compete on a national level. In addition, Arch believes
that the paging industry will undergo further consolidation, and Arch expects
to participate in such consolidation.
Arch's operating objectives are to increase its earnings before interest,
taxes, depreciation and amortization ("EBITDA"), deploy its capital
efficiently, reduce its financial leverage and expand its customer
relationships. To achieve its operating objectives, Arch: (i) has selected a
low-cost operating strategy as its principal competitive tactic; (ii) is
seeking to reduce its financial leverage by reducing capital requirements and
increasing EBITDA; (iii) has focused its capital and marketing resources on
one-way paging and enhanced services while taking steps to position itself to
participate in new and emerging services and applications in narrowband
personal communications services ("N-PCS"); and (iv) is pursuing new revenue
opportunities associated with its 4.2 million pagers in service.
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A predecessor to Arch, also named Arch Communications Group, Inc. ("Old
Arch"), was incorporated in January 1986 in Delaware and conducted its
operations through wholly owned direct and indirect subsidiaries. On September
7, 1995, Old Arch completed its acquisition of USA Mobile Communications
Holdings, Inc. through the merger of Old Arch with and into USA Mobile, which
simultaneously changed its name to Arch Communications Group, Inc. and
continued in existence as a Delaware corporation. In accordance with GAAP, Old
Arch was treated as the acquirer in such merger for accounting and financial
reporting purposes, and Arch reports the historical financial statements of Old
Arch as its historical financial statements. See Note 2 to Arch's Consolidated
Financial Statements. As used herein, unless the context otherwise requires the
term "Arch" refers to Arch Communications Group, Inc. from and after the USA
Mobile Merger and Old Arch prior to the USA Mobile Merger, in each case
together with its wholly owned direct and indirect subsidiaries. Arch's
principal office is located at 1800 West Park Drive, Suite 250, Westborough,
Massachusetts 01581 and its telephone number is (508) 870-6700.
MOBILEMEDIA
Parent, through MobileMedia, operates one of the largest paging companies in
the United States, with approximately 3.2 million units in service as of
September 30, 1998. Through its sales offices, nationwide retail distribution
network, company-operated retail stores and resellers, MobileMedia offers
local, regional and national coverage to subscribers in all 50 states and the
District of Columbia, including local coverage to each of the 100 most
populated metropolitan markets in the United States. MobileMedia markets its
services primarily under the MobileComm brand name. Parent's business is
conducted primarily through MobileMedia, and MMC and various subsidiaries of
MMC hold the Federal Communications Commission licenses and, where applicable,
state public utility commission authorizations that grant MobileMedia the
authority to operate its paging systems.
MobileMedia distributes its paging services using three primary distribution
channels: direct, reseller and retail. MobileMedia's paging and wireless
messaging services consist principally of numeric and alphanumeric paging
services, offering local, regional and national coverage. Parent and MMC were
each incorporated in Delaware in 1993. Unless the context otherwise requires,
references to MobileMedia refer to MMC and its consolidated subsidiaries. The
executive offices of Parent and MMC are located at Fort Lee Executive Park, One
Executive Drive, Suite 500, Fort Lee, New Jersey 07024 and their telephone
number is (201) 224-9200.
In January 1996, MMC completed the acquisition of Mobile Communications
Corporation of America. During 1996, MobileMedia experienced difficulties
executing its post-acquisition business strategy due largely to problems
encountered in integrating the operations of MobileComm and Dial Page Inc.,
which MMC had acquired in August 1995. Accordingly, during 1996 MobileMedia's
financial position deteriorated. At September 30, 1996, MMC was in violation of
certain financial covenants under its $750.0 million senior secured credit
agreement (as amended, the "MobileMedia 1995 Credit Agreement"), which resulted
in the occurrence of "Events of Default" under that agreement and precluded MMC
from borrowing additional funds thereunder. In the fall of 1996, MobileMedia
commenced negotiations with The Chase Manhattan Bank, the agent (the "Pre-
Petition Agent") for the lenders (the "Pre-Petition Lenders") under the
MobileMedia 1995 Credit Agreement, regarding the terms of a possible financial
restructuring. In addition, in the fall of 1996, MobileMedia failed to make
payments due to certain of its most important vendors, including Motorola,
Inc., MobileMedia's largest supplier of pagers and pager repair parts. As a
result, MobileMedia was unable to place orders with or obtain shipments from
Motorola and certain of MobileMedia's other important vendors. In addition,
MobileMedia disclosed in September and October of 1996 that misrepresentations
had been made to the FCC by certain members of its management (none of whom are
now employed by MobileMedia) and that other violations of law had occurred
during the licensing process for as many as 400 to 500 authorizations, which
authorizations relate to approximately 6% to 7% of its approximately 8,000
local transmission one-way paging stations. MobileMedia is still in the process
of resolving these issues with the FCC. See "Business--MobileMedia--Litigation"
and "Business--MobileMedia Management's Discussion and Analysis of Financial
Condition and
2
<PAGE>
Results of Operations--Pending FCC Action Against MobileMedia". On January 30,
1997 (the "Petition Date"), Parent, MMC and all of MMC's subsidiaries
(collectively, the "Debtors") filed voluntary petitions for reorganization
under Chapter 11 with the U.S. Bankruptcy Court for the District of Delaware.
During the pendency of these cases (the "Insolvency Proceedings"),
MobileMedia's management has continued to manage the operations and affairs of
the Debtors as debtors-in-possession under the jurisdiction of the Bankruptcy
Court. The Debtors filed an initial plan of reorganization on January 27, 1998,
which has now been superseded by the Amended Plan. Pursuant to the Amended
Plan, the investments of holders of Parent capital stock will be eliminated and
such holders will receive no consideration on account of their ownership
interests in Parent.
THE COMBINED COMPANY
Arch, after giving effect to the acquisition of MobileMedia (together, the
"Combined Company"), would be the second largest paging operator in the United
States as measured by pagers in service and net revenues (total revenues less
cost of products sold). On a pro forma basis (but excluding the impact of
expected operational cost synergies), at and for the nine months ended
September 30, 1998, the Combined Company would have had approximately 7.1
million pagers in service, net revenues of $605.3 million, Adjusted Pro Forma
EBITDA (as defined below) of $190.9 million, net loss before extraordinary
items of $127.2 million and total debt of $1.3 billion. For the nine-month
period ended September 30, 1998, cash flows provided by operating activities,
used in investing activities and provided by financing activities were $139.2
million, $487.5 million and $361.4 million, respectively. The adjusted pro
forma cash flow information assumes that the Merger and the Related
Transactions (as defined herein) had been effected as of January 1, 1998.
Leverage for the Combined Company on a pro forma basis (but excluding the
impact of expected operational cost synergies), as measured by the ratio of
total debt to annualized EBITDA (net of restructuring charges and bankruptcy
related expenses, equity in loss of affiliates, income tax benefit, interest
and non-operating expenses (net), extraordinary items and amortization of
deferred gain on tower sale ) ("Adjusted Pro Forma EBITDA") for the nine months
ended September 30, 1998, would have been 5.2:1. See "The Combined Company" and
"Unaudited Pro Forma Condensed Consolidated Financial Statements".
Arch believes that the Combined Company will be well positioned to compete
effectively in the highly competitive paging industry for the following
reasons. The combination of MobileMedia's market presence in major metropolitan
markets with Arch's historical emphasis on middle and small markets will
significantly broaden the geographic scope of Arch's marketing presence and
should position the Combined Company to compete more effectively for large
corporate customers with diverse geographic operations. With a significantly
larger subscriber base, the Combined Company should be better able to serve
strategic distribution arrangements, as well as amortize marketing investments
over a larger revenue base. In addition, MobileMedia's third party retail
distribution agreements, which serve the more rapidly growing consumer market,
should complement Arch's over 200 company-owned retail outlets. Similarly,
MobileMedia's two nationwide paging networks (and the potential for higher
revenue nationwide services) should enhance Arch's local coverage and provide
the opportunity to take advantage of Arch's distribution platforms.
MobileMedia's plan to deploy its nationwide N-PCS spectrum over its existing
network infrastructure should permit Arch to market enhanced N-PCS services
(primarily multi-market alphanumeric and text messaging services) sooner than
it would otherwise be able to, and these services are expected to provide
higher revenue and more growth potential than basic paging services. Finally,
MobileMedia's investments to date in two national call centers should
supplement Arch's own call center and complement Arch's strategy of evolving to
"scalable" regional customer service centers. See "The Combined Company".
THE MERGER AND THE REORGANIZATION
CONSIDERATION TO BE PAID IN THE PROPOSED TRANSACTION
Pursuant to the Merger Agreement and the Amended Plan, Arch will acquire
MobileMedia for a combination of cash and Arch securities, as follows:
3
<PAGE>
.Arch will pay approximately $479.0 million in cash to (and reimburse up to
$1.0 million in attorneys and other fees paid by) certain secured creditors
of Parent and MobileMedia under the MobileMedia 1995 Credit Agreement and
the claims of such creditors will be discharged;
.Arch will pay all borrowings outstanding under MobileMedia's post-petition
credit facility (subject to the limitations outlined below under "The
Merger Agreement--Conduct of MobileMedia's Business Pending the Merger");
.Arch will pay or assume pre-petition priority claims and post-petition
claims incurred by the Debtors in the ordinary course of business or
authorized by the Bankruptcy Court, and such pre-petition priority claims
and post-petition claims will be discharged;
.Arch will pay principal and accrued interest plus certain indenture
trustee fees outstanding under the senior notes issued by Dial Page and
assumed by MobileMedia in the acquisition of Dial Page, estimated at $2.1
million on September 30, 1998, and the claims under the Dial Page notes
will be discharged; and
.Arch will issue 14,344,969 shares of Arch Common Stock (the "Creditors
Stock Pool") and transferable rights described below to acquire up to an
additional 108,500,000 shares of Arch Combined Common Stock (the "Rights")
to unsecured creditors of Parent and MobileMedia (the "Unsecured
Creditors") in consideration of the discharge of their claims classified as
Class 6 claims under the Amended Plan, except that the number of shares of
Arch Common Stock comprising the Creditor Stock Pool will be reduced if
certain of the pre-petition priority claims and post-petition claims paid
or assumed by Arch exceed $34.0 million as described below under "--The
Reorganization".
Pursuant to the Merger Agreement and Amended Plan, Arch will also issue to
the holders of Arch Common Stock and Series C Preferred Stock on a record date
to be determined by the Arch Board of Directors non-transferable rights and
warrants described below to acquire up to 44,893,166 shares of Arch Common
Stock and will issue to certain Unsecured Creditors that have agreed to
purchase shares of Arch Combined Common Stock to the extent the Rights are not
exercised warrants to acquire up to 3,675,659 shares of Arch Common Stock.
THE RIGHTS OFFERINGS
Arch will distribute (the "Rights Offering") Rights to Unsecured Creditors to
acquire up to 108,500,000 shares of Arch Combined Common Stock at a purchase
price of $2.00 per share and an aggregate purchase price of up to $217.0
million. The Rights will be distributed and become exercisable as promptly as
practicable after the Bankruptcy Court has approved the disclosure statement to
be sent to MobileMedia creditors and the registration statement filed by Arch
with respect to the Rights has been declared effective. The Rights will expire
on the same date as the rights issued to holders of Arch Common Stock and
Series C Preferred Stock described below under "--The Arch Rights Offering".
The Rights are transferable.
Certain of the Unsecured Creditors, W.R. Huff Asset Management Co., L.L.C.
(as agent for various discretionary accounts and affiliates), Whippoorwill
Associates, Inc. (as general partner of and/or agent for various discretionary
accounts), The Northwestern Mutual Life Insurance Company (both individually
and for its General Annuity Separate Account), Northwestern Mutual Series Fund,
Inc.--High Yield Bond Portfolio and Credit Suisse First Boston Corporation
(collectively, the "Standby Purchasers"), have executed separate Standby
Purchase Agreements pursuant to which they have agreed to purchase shares of
Arch Combined Common Stock to the extent the Rights are not exercised. In
consideration of their Standby Purchase Agreements Arch will issue to the
Standby Purchasers warrants (the "Arch Participation Warrants") to acquire up
to 3,675,659 shares of Arch Common Stock on or before September 1, 2001 at a
fixed per share exercise price equal to the amount that would result at
September 1, 2001 from an investment of $2.00 on the Effective Date (as defined
below) assuming a 20% per annum internal rate of return (the "Warrant Exercise
Price").
Arch will also distribute (the "Arch Rights Offering"), to the holders of
shares of Arch Common Stock and Series C Preferred Stock outstanding on a date
to be determined and announced by the Arch Board of Directors, non-transferable
rights to acquire up to 44,893,166 shares of Arch Common Stock at a price of
$2.00 per share, and to the extent such rights are not exercised Arch will
distribute in lieu thereof the Arch Participation
4
<PAGE>
Warrants to acquire an equivalent number of shares of Arch Common Stock at the
Warrant Exercise Price (the "Arch Stockholder Rights").
The Class B Common Stock will be issued to the Standby Purchasers or their
affiliates if the Standby Purchasers and their affiliates would collectively
own more than 49.0% of the Arch Common Stock to be outstanding after
consummation of the Merger, on an as-converted basis, assuming conversion of
all convertible securities and assuming the exercise of all warrants held by
the Standby Purchasers and their affiliates. The Class B Common Stock will also
be issued to any other person or "group" (within the meaning of Rule 13d-3 or
13d-5 promulgated by the SEC) acquiring any shares upon the exercise of Rights
if such person or group would own more than 49.0% of the Arch Common Stock to
be outstanding after consummation of the Merger on an as-converted basis,
assuming conversion of all convertible securities and assuming the exercise of
all warrants held by such person or group. In such event shares of Class B
Common Stock will be issued to the Standby Purchasers (or such person or group)
in substitution for shares of Arch Common Stock sufficient so that the Standby
Purchasers and their affiliates (or such person or group) would own, in the
aggregate, no more than 49.0% of the outstanding shares of capital stock of
Arch generally entitled to vote in the election of directors or more than 49.0%
of the voting power of the outstanding voting shares upon consummation of the
Merger. Any shares of Class B Common Stock transferred by any Standby Purchaser
to any transferee other than another Standby Purchaser or affiliate thereof
will automatically convert into an equal number of shares of Arch Common Stock.
See "Risk Factors--Uncertainties Related to the Merger and the Reorganization--
Certain Risks Associated with the Merger"; "Description of the Arch Securities"
and "Description of Certain Arch Indebtedness". The Class B Common Stock will
be identical in all respects to Arch Common Stock, except that holders of Class
B Common Stock will not be entitled to vote in the election of directors and
will be entitled to 1/100th of a vote per share with respect to all other
matters. Except as otherwise required by law, Class B Common Stock will vote as
a single class together with the Arch Common Stock.
The proceeds received upon exercise of the Rights, under the Standby Purchase
Agreements and upon exercise of the Arch Stockholders Rights will be used to
fund, in part, the cash payments to be made by Arch under the Amended Plan.
STOCKHOLDINGS BEFORE AND AFTER THE MERGER
The following table sets forth certain information with respect to the
ownership of Arch Combined Common Stock, including shares issuable upon
exercise of Arch Participation Warrants, after the Merger.
<TABLE>
<CAPTION>
PERCENTAGE OWNERSHIP OF ARCH COMMON STOCK
OUTSTANDING(1)
-----------------------------------------
ASSUMING NO EXERCISE
OF ANY ARCH ASSUMING EXERCISE OF
STOCKHOLDER RIGHTS ALL ARCH STOCKHOLDER
OR ARCH RIGHTS AND ALL ARCH
PARTICIPATION PARTICIPATION
WARRANTS WARRANTS
-------------------- --------------------
<S> <C> <C>
Unsecured Creditors of
MobileMedia(2)...................... 82.7% 64.2%
Stockholders of Arch Prior to the
Merger.............................. 17.3 35.8
----- -----
Total.............................. 100.0% 100.0%
===== =====
</TABLE>
- --------
(1) Assuming in all cases the conversion of all convertible Arch securities and
the full exercise of the Rights by the initial recipients thereof.
(2) Includes Standby Purchasers. Depending on the amounts of Arch Common Stock
which the other Unsecured Creditors elect to purchase, the Standby
Purchasers might hold, in the aggregate, a majority of the outstanding
shares of Arch Combined Common Stock. However, the Standby Purchasers would
not hold, in the aggregate, shares representing more than 49.0% of
securities of Arch generally entitled to vote in the election of directors
or 49.0% of the total voting power of the outstanding securities of Arch at
such time, because a portion of their holdings would be Class B Common
Stock. See "Description of Arch Securities--Class B Common Stock".
5
<PAGE>
THE MERGER
Upon consummation of the Merger pursuant to the Merger Agreement and the
Amended Plan, MMC will be merged with and into the Merger Subsidiary, which
will be the Surviving Corporation. Immediately prior to the Merger, Parent will
contribute all of its assets to MMC, and in connection with the Merger MMC's
subsidiaries will be consolidated into a single subsidiary which will become an
indirect wholly owned subsidiary of Arch as a result of the Merger. See "The
Merger Agreement" and "The MobileMedia Plan of Reorganization".
THE REORGANIZATION
The Debtors filed the Amended Plan with the Bankruptcy Court on December 2,
1998. The Amended Plan provides for the treatment of all claims against and
equity interests in the Debtors. In addition to providing for the distribution
of $479.0 million in cash to the secured creditors of Parent and MobileMedia
and the issuance of shares of Arch Combined Common Stock to the Unsecured
Creditors (in connection with the Merger and the Amended Plan, upon exercise of
Rights or pursuant to the Standby Purchase Agreements), the Amended Plan
provides that holders of pre-petition claims which are entitled to priority in
accordance with applicable provisions of the Bankruptcy Code will be paid in
full in cash on the date on which the Amended Plan becomes effective (the
"Effective Date") or be unimpaired under the Bankruptcy Code and that all post-
petition claims incurred by the Debtors in the ordinary course of business or
as authorized by the Bankruptcy Court will either be paid in full in cash on
the Effective Date or in accordance with the terms applicable to such post-
petition claims (all such transactions being collectively referred to herein as
the "Reorganization"). The Amended Plan requires Arch to make sufficient funds
available to pay all such priority and administrative claims; provided,
however, that if the total required to be paid on account of priority tax
claims, professional fees (other than those paid monthly pursuant to orders
entered by the Bankruptcy Court in the Insolvency Proceedings), cure payments
due with respect to assumed executory contracts, bonus payments and amounts
required to pay the Dial Page 12 1/4% Senior Notes due 2000, payable by MMC,
together with the costs and expenses of the Standby Purchasers in accordance
with the Standby Purchase Agreements, exceeds $34.0 million, the number of
shares of Arch Common Stock in the Creditor Stock Pool will be reduced by a
number of shares equal to the amount by which such claims exceed $34.0 million
divided by $25.315. Arch has also agreed to pay in cash on the Effective Date
loans outstanding under MMC's Revolving Credit and Guarantee Agreement dated as
of January 30, 1997 among MMC, The Chase Manhattan Bank and other lenders who
are a party thereto (as amended, the "DIP Credit Agreement"). The Merger
Agreement provides that at the Effective Time (as defined below) the amount of
loans outstanding under the DIP Credit Agreement shall not exceed specified
amounts. See "The Merger Agreement". The Amended Plan will become effective on
a business day that is ten (10) business days after the day that all conditions
to closing under the Merger Agreement have been satisfied or waived, other than
the condition that the Amended Plan be confirmed (which condition cannot be
waived). See "The MobileMedia Plan of Reorganization".
RECOMMENDATION OF THE ARCH BOARD
After careful consideration, the Arch Board has unanimously approved the
Merger Agreement and the transactions contemplated thereby and recommends that
holders of Arch Common Stock and Series C Preferred Stock vote in favor of the
MobileMedia Proposal, the Charter Amendment Proposal, the Stock Split Proposal
and the Option Plan Proposal. The Arch Board considered many factors in
reaching its conclusion to approve the Merger Agreement and to recommend that
stockholders vote for the MobileMedia Proposal, the Charter Amendment Proposal,
the Stock Split Proposal and the Option Plan Proposal, including the opinion of
its financial advisor. See "The MobileMedia Proposal--Arch Reasons for the
Merger", --Recommendation of the Arch Board of Directors", and "--Opinion of
Arch's Financial Advisor".
OPINION OF ARCH'S FINANCIAL ADVISOR
Bear, Stearns and Co. Inc. has delivered a written opinion dated September 3,
1998 to the Arch Board to the effect that, as of such date and based upon and
subject to certain matters stated therein, the consideration to be
6
<PAGE>
paid by Arch to the claimholders of MobileMedia in connection with the Merger
(and pursuant to the Amended Plan) and the issuance of Arch Stockholder Rights
(or Arch Participation Warrants in lieu of any unexercised Arch Stockholder
Rights) to Arch's stockholders, taken together as a whole, is fair, from a
financial point of view, to Arch and its stockholders. See "The MobileMedia
Proposal--Opinion of Arch's Financial Advisor".
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Arch is unaware of any interests that any directors or officers of Arch have
in connection with the Merger that are in addition to the interests of the
stockholders of Arch generally. See "The MobileMedia Proposal--Interests of
Certain Persons in the Merger".
EFFECTIVE TIME OF THE MERGER
The Merger will become effective upon the filing of a duly executed
Certificate of Merger with the Secretary of State of the State of Delaware, or
such later time as may be specified in the Certificate of Merger (the
"Effective Time"). It is anticipated that the Merger will become effective as
promptly as practicable after the requisite Arch stockholder approval has been
obtained and all regulatory approvals and other conditions to the Merger set
forth in the Merger Agreement and the Amended Plan have been satisfied or, if
legally permissible, waived. Assuming all such conditions are met, the Merger
is expected to be consummated in the first quarter of 1999. See "The Merger
Agreement--Conditions" and "The MobileMedia Plan of Reorganization--Conditions
to Effectiveness of the Plan".
BOARD OF DIRECTORS OF ARCH UPON THE MERGER
Edwin M. Banks, a designee of W.R. Huff Asset Management Co., L.L.C., and H.
Sean Mathis, a designee of Whippoorwill Associates, Inc., will become directors
of Arch at the Effective Time, and Arch will be required to nominate for
election as directors one designee of W.R. Huff and one designee of
Whippoorwill so long as W.R. Huff or Whippoorwill, as the case may be, holds
securities of Arch representing at least 10% of the combined voting power of
all outstanding securities of Arch (5% in the case of the initial renomination
of such designees). At the Effective Time, therefore, the directors of Arch are
expected to be: Edwin M. Banks, James S. Hughes and Allan L. Rayfield, whose
terms will expire at the annual meeting of stockholders to be held after the
end of the fiscal year ending December 31, 1998, H. Sean Mathis, John B. Saynor
and John A. Shane, whose terms will expire at the annual meeting of
stockholders to be held after the end of the fiscal year ending December 31,
1999; and C. Edward Baker, Jr., R. Schorr Berman and John Kornreich, whose
terms will expire at the annual meeting of stockholders to be held after the
end of the fiscal year ending December 31, 2000. In addition, a designee of
W.R. Huff will be granted observation rights at all meetings of the Arch Board
following the Merger so long as a designee of W.R. Huff is serving on the Arch
Board. See "The Merger Agreement--Related Agreements--Standby Purchase
Agreements".
REGULATORY APPROVALS
Paging operations and the construction, modification, ownership and
acquisition of paging systems are subject to extensive regulation by the FCC
under the Communications Act of 1934, as amended, and, to a much more limited
extent, by public utility or public service commissions in certain states. See
"Industry Overview--Regulation". The consummation of the Merger is subject to
certain regulatory approvals, including FCC approval and the approval of
various state regulatory authorities. The Merger is also subject to the
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder, which provide that certain
transactions may not be consummated until certain required information and
materials have been furnished to the Antitrust Division of the Department of
Justice and the Federal Trade Commission and certain waiting periods have
expired or been terminated. Arch and MobileMedia have filed the required
information and material with the Antitrust Division and the FTC and the
required waiting periods have expired. See "The MobileMedia Proposal--
Regulatory Approvals".
7
<PAGE>
CONDITIONS TO THE MERGER
The Merger Agreement and the Amended Plan each provide that the respective
obligations of Arch and MobileMedia to effect the Merger are subject to the
satisfaction or, if legally permissible, waiver of a number of conditions on or
prior to the Effective Time. See "The Merger Agreement--Conditions" and "The
MobileMedia Plan of Reorganization--Conditions to Effectiveness of the Plan".
TERMINATION; AMENDMENT AND WAIVER
The Merger Agreement provides that Arch and MMC may terminate the Merger
Agreement prior to the Effective Date as follows: (i) Arch and MMC may
terminate the Merger Agreement by mutual written consent; (ii) either Arch or
MMC may terminate the Merger Agreement by giving written notice to the other in
the event the other is in material breach of its representations and warranties
or its material covenants or agreements contained in the Merger Agreement (with
certain bankruptcy-related exceptions); (iii) Arch or MMC may terminate the
Merger Agreement by written notice to the other if the Merger has not occurred
on or prior to June 30, 1999; (iv) MMC may terminate the Merger Agreement if it
has decided to pursue a MobileMedia Superior Proposal (as defined herein) by
giving written notice to Arch, provided that on or before such termination MMC
will have paid to Arch a fee of $25.0 million (the "Buyer Breakup Fee");
(v) MMC may terminate the Merger Agreement by giving written notice to Arch if
(A) the Arch Board does not issue its recommendation prior to the Special
Meeting or withdraws or amends in a manner adverse to MMC such recommendation
or otherwise materially breaches its obligations with respect to soliciting
proxies from its stockholders for approval of the MobileMedia Proposal or the
Charter Amendment Proposal to be considered at a Special Meeting or (B) at the
Special Meeting either the MobileMedia Proposal or the Charter Amendment
Proposal is not approved by the requisite vote of Arch's stockholders, and upon
such termination Arch must pay a fee of $32.5 million to MMC (the "MobileMedia
Breakup Fee"); and (vi) Arch may terminate the Merger Agreement by giving
written notice to MMC if MMC or any other Debtor files either an amendment to
the Amended Plan or any other plan of reorganization in violation of the Merger
Agreement. See "The Merger Agreement--Certain Covenants and Agreements--Break-
up Fee Provisions".
If any party terminates the Merger Agreement, all obligations of Arch and MMC
thereunder will generally terminate without any liability of any party to any
other party, except for any liability of any party for willful or intentional
breaches of the Merger Agreement, and except for MMC's obligation to pay the
Buyer Breakup Fee, if applicable, and Arch's obligation to pay the MobileMedia
Breakup Fee, if applicable, which will survive any such termination.
Arch, Parent and MMC may mutually amend any provision of the Merger Agreement
(in certain cases Parent and MMC may do so only with the consent of the
Official Committee of Unsecured Creditors or pursuant to an order of the
Bankruptcy Court). Any amendments or modifications (with certain exceptions) to
the Merger Agreement must be reasonably satisfactory to the Standby Purchasers.
The Merger Agreement provides that no waiver by any party to the Merger
Agreement of any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
MMC, on behalf of itself, Parent and MobileMedia, has agreed not to make any
material change to the Amended Plan or the Merger Agreement, exercise any
rights they may have to terminate the Merger Agreement or take any action which
could result in the termination of the Merger Agreement by Arch without the
prior written consent of the Unsecured Creditors Committee or the entry of an
order by the Bankruptcy Court. MMC has further agreed not to exercise its
rights to respond to or negotiate acquisition proposals received from third
parties without advising and consulting with the Unsecured Creditors Committee.
MMC also agreed that the Unsecured Creditors Committee could request MMC to
exercise its right to terminate the Merger Agreement, and if MMC does not do
8
<PAGE>
so, the Unsecured Creditors Committee may seek an order of the Bankruptcy Court
to do so. The Unsecured Creditors Committee has undertaken with each Standby
Purchaser to provide copies of all notices, documents or information provided
to it by Arch, Parent or MobileMedia and to consult with such Standby Purchaser
prior to delivering any consent or exercising any right of the Unsecured
Creditors Committee under the foregoing agreement or under the Amended Plan.
The obligation of the Standby Purchasers under the Standby Purchase Agreements
are conditioned upon any amendments or modifications to the Merger Agreement or
exhibits or schedules thereto, or any waivers or consents delivered by Arch or
MMC (with certain exceptions), being reasonably satisfactory to the Standby
Purchasers. Arch has agreed not to take certain actions (including incurring
additional debt, amending the Arch Certificate and issuing Arch securities)
without written consent from the Standby Purchasers.
APPRAISAL RIGHTS
Stockholders of Arch are not entitled to appraisal rights under the Delaware
General Corporation Law (the "DGCL") in connection with the Merger. See "The
MobileMedia Proposal--Appraisal Rights". At the Effective Time, all rights of
the holders of Parent's common stock (the "MobileMedia Stockholders") will be
extinguished. See "The MobileMedia Plan of Reorganization".
MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
Neither Arch nor the stockholders of Arch will recognize gain or loss for
federal income tax purposes as a result of the Merger. It is anticipated that
(S)382 of the Internal Revenue Code of 1986, as amended, will limit the amount
of income earned by Arch after the Merger that may be offset by Arch's net
operating loss carryforwards and other tax attributes. It is also anticipated
that the NOL carryforwards and possibly other tax attributes of MMC will be
substantially reduced as a result of consummation of the Amended Plan pursuant
to (S)108 and (S)382 of the Tax Code. See "The MobileMedia Proposal--Material
Federal Income Tax Consequences".
ACCOUNTING TREATMENT
The Merger will be accounted for under the "purchase" method of accounting;
the purchase price will be allocated based on the fair value of the assets
acquired and the liabilities assumed. In accordance with GAAP, Arch will be
treated as the acquiror in the Merger for accounting and financial reporting
purposes, and Arch will continue to report its historical financial statements
as the historical financial statements of the combined entities. See "The
MobileMedia Proposal--Accounting Treatment".
RESTRICTIONS ON RESALE OF SECURITIES ISSUED IN THE MERGER; REGISTRATION RIGHTS
In general, all resales and subsequent transactions in securities received by
Unsecured Creditors pursuant to the Merger Agreement, the Amended Plan and the
Standby Purchase Agreements will be exempt from registration under the
Securities Act, pursuant to Section 4(1) of the Securities Act unless the
holder thereof is deemed to be an "affiliate" of Arch or an "underwriter" with
respect to such securities. Rule 144 under the Securities Act provides an
exemption from registration under the Securities Act for certain limited public
resales of unrestricted securities by "affiliates" of the issuer of such
securities. The securities received by Unsecured Creditors pursuant to the
Merger Agreement, the Amended Plan and the Standby Purchase Agreements will be
unrestricted securities for purposes of Rule 144. See "The MobileMedia
Proposal--Federal Securities Law Consequences". In addition, Arch has agreed to
provide the Standby Purchasers and certain other creditors that may be deemed
to be "affiliates" of Arch certain registration rights with respect to the
securities to be received by them pursuant to the Merger Agreement, the Amended
Plan and the Standby Purchase Agreements (in the case of the Standby
Purchasers). See "The Merger Agreement--Related Agreements--Registration Rights
Agreements".
9
<PAGE>
THE SPECIAL MEETING
DATE AND PLACE OF THE SPECIAL MEETING
The Special Meeting will be held on January , 1999 at 10:00 a.m., local
time, at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109.
STOCKHOLDERS ENTITLED TO VOTE
Holders of record of shares of Arch Common Stock and Series C Preferred Stock
at the close of business on the Record Date, December 11, 1998, are entitled to
notice of and to vote at the Special Meeting and any adjournments or
postponements thereof. On the Record Date, there were 21,067,110 shares of Arch
Common Stock and 250,000 shares of Series C Preferred Stock outstanding.
PURPOSE OF THE SPECIAL MEETING
1. To approve the MobileMedia Proposal;
2. To approve the Charter Amendment Proposal;
3. To approve the Stock Split Proposal;
4. To approve the Option Plan Proposal;
5. To approve the Stock Purchase Plan Proposal; and
to transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof.
THE APPROVAL OF BOTH THE MOBILEMEDIA PROPOSAL AND THE CHARTER AMENDMENT
PROPOSAL IS CONDITIONED UPON APPROVAL OF BOTH SUCH PROPOSALS. ACCORDINGLY,
A VOTE AGAINST EITHER OF THESE PROPOSALS WILL HAVE THE SAME EFFECT AS A
VOTE AGAINST BOTH SUCH PROPOSALS.
VOTE REQUIRED
The affirmative vote of shares of Arch Common Stock and Series C Preferred
Stock (assuming the conversion of the Series C Preferred Stock and voting
together as a single class) (as so calculated, the "Arch Voting Stock")
representing a majority of the votes entitled to be cast in respect of the
shares of Arch Voting Stock present or represented at the Special Meeting is
necessary to approve each of the matters to be considered at the Special
Meeting, provided a quorum is present, except that the affirmative vote of
shares of Arch Voting Stock representing a majority of all votes entitled to be
cast is necessary to approve the Charter Amendment Proposal and the Stock Split
Proposal. Each share of Arch Common Stock is entitled to one vote, and each
share of Series C Preferred Stock is currently entitled to 18.5 votes, on all
matters presented at the Special Meeting. See "Description of Arch Securities--
Arch Series C Preferred Stock".
Votes may be cast in person at the Special Meeting or by proxy. Any Arch
stockholder who executes and returns a proxy card may revoke such proxy at any
time before it is voted by (i) notifying in writing the Secretary of Arch at
1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581, (ii)
granting a subsequent proxy or (iii) appearing in person and voting at the
Special Meeting. Attendance at the Special Meeting will not in and of itself
constitute revocation of a proxy.
The MobileMedia stockholders are not entitled to vote in connection with the
Merger. See "The MobileMedia Plan of Reorganization".
10
<PAGE>
RISK FACTORS
In considering the proposed Merger, Arch stockholders should consider, among
other risks, the risks associated with integrating the businesses of Arch and
MobileMedia, the structure of the Merger and the Reorganization and financing
the future capital needs of the Combined Company following the Merger. Other
risks to be considered include risks of the Combined Company related to
competition, technological change, government regulation, subscriber turnover,
reliance on equipment suppliers, dependence on key personnel and possible
volatility of stock price. Each of Arch and MobileMedia has a history of
operating losses. Arch does not anticipate that it will make any cash
distributions to its stockholders after the Merger and expects to continue to
have a highly leveraged capital structure. Participation in the Arch Rights
Offering involves certain market risks, illiquidity with respect to certain of
the securities being offered and substantial dilution. See "Risk Factors".
THE ARCH RIGHTS OFFERING
Securities Offered.......... 44,893,166 Arch Stockholder Rights will be dis-
tributed. Each Arch Stockholder Right will enti-
tle its holder to subscribe for and purchase one
share of Arch Common Stock.
Subscription Price.......... $2.00 per Arch Stockholder Right payable in cash.
Distribution Ratio.......... The Arch Stockholder Rights will be distributed
pro rata to holders of Arch Common Stock and Se-
ries C Preferred Stock (assuming for these pur-
poses the conversion of all Series C Preferred
Stock) outstanding on a record date to be deter-
mined by the Arch Board of Directors. No frac-
tional rights will be distributed.
Oversubscription
Privileges................. None.
Expiration Date for
Exercise of Arch Rights.... 5:00 p.m., New York City time, on a date selected
by Arch and MobileMedia on or prior to the later
of (i) the date on which the Bankruptcy Court en-
ters an order (the "Confirmation Order") confirm-
ing the Amended Plan (the "Confirmation Date") or
(ii) the date on which the FCC Grant is issued,
which date must be at least 15 days after the
date on which all closing conditions in the
Merger Agreement have been satisfied or, if le-
gally permissible, waived (other than the condi-
tions relating to (i) the requirement that the
FCC Grant has become a final order (as defined
herein), (ii) the requirement that the Confirma-
tion Order has become a final order and (iii)
certain other conditions which by their terms
cannot be satisfied until the Effective Time)
(the "Expiration Date"). Arch Stockholder Rights
not exercised prior to the Expiration Date will
be void and will no longer be exercisable.
Arch Participation
Warrants................... To the extent Arch stockholders elect not to ex-
ercise Arch Stockholder Rights such holders will
receive a number of Arch Participation Warrants
equal to the number of unexercised Arch Stock-
holder Rights, exercisable at the Warrant Exer-
cise Price. The Arch Participation Warrants will
be exercisable until September 1, 2001.
Subscription Agent.......... The Bank of New York will serve as Subscription
Agent for the Arch Rights Offering.
11
<PAGE>
Information Agent........... MacKenzie Partners, Inc. will serve as Informa-
tion Agent for the Arch Rights Offering.
Method of Exercise of
Rights..................... Stockholders of Arch or their transferees may
subscribe by properly completing and signing the
Subscription Certificate evidencing the Arch
Stockholder Rights, and forwarding such Subscrip-
tion Certificate together with payment in good
funds of the Subscription Price for each share of
Arch Common Stock subscribed for, to the Sub-
scription Agent, on or prior to the Expiration
Date. In forwarding Subscription Certificates by
mail, it is recommended that insured, registered
mail be used. Subscription Certificates will be
mailed to holders of Arch Stockholder Rights
promptly following the date on which the Arch
Stockholder Rights separate from the Arch Common
Stock or Series C Preferred Stock to which they
relate.
NO REVOCATION............... ONCE A HOLDER OF ARCH STOCKHOLDER RIGHTS HAS SUB-
SCRIBED, SUCH SUBSCRIPTION MAY NOT BE REVOKED.
SEE "THE ARCH RIGHTS OFFERING--NO REVOCATION".
Exercise Through Others..... Persons holding Arch Common Stock or Series C
Preferred Stock beneficially and receiving Arch
Stockholder Rights issuable with respect thereto,
through a broker, dealer, commercial bank, trust
company or other nominee, as well as persons
holding Arch Stockholder Rights directly who
would prefer to have such institutions effect
transactions relating to the Arch Stockholder
Rights on their behalf, should contact the appro-
priate institution or nominee and request it to
effect such transaction for them.
Foreign Holders............. Subscription Certificates will not be mailed to
holders whose addresses are outside the United
States, but will be held by the Subscription
Agent for their accounts. To exercise the Arch
Stockholder Rights represented thereby, such
holders must notify the Subscription Agent and
take all other steps which are necessary to exer-
cise the Arch Stockholder Rights on or prior to
5:00 p.m., New York City time, on the Expiration
Date.
Transfer.................... The Arch Stockholder Rights are not transferable.
Arch Participation Warrants will be transferable.
Escrow of Funds............. Subscribed funds will be held in a segregated ac-
count pending consummation of the Merger. If the
Merger is not consummated, the Arch Rights Offer-
ing will terminate and subscribed funds in the
escrow account will be returned. No interest will
be paid to subscribers on their subscribed funds.
Federal Income Tax
Considerations............. For federal income tax purposes, holders of Arch
Common Stock and holders of Series C Preferred
Stock may recognize income or gain in connection
with the distribution of Arch Stockholder Rights
to them. Arch stockholders generally will not
recognize any gain or loss in connection with the
exercise of Arch Stockholder Rights or Arch Par-
ticipation Warrants. See "The MobileMedia Propos-
al--Material Federal Income Tax Consequences".
12
<PAGE>
Use of Proceeds............. Arch intends to use substantially all of the net
proceeds received upon the exercise of the Arch
Stockholder Rights to pay a portion of the cash
consideration payable to secured creditors of
MobileMedia pursuant to the Amended Plan.
13
<PAGE>
FORWARD-LOOKING STATEMENTS
This Proxy Statement/Prospectus contains forward-looking statements that are
made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Any statements contained herein (including,
without limitation, statements to the effect that Arch, Parent or MMC or their
respective managements or boards of directors "believe", "expect",
"anticipate", "plan" and similar expressions) that are not statements of
historical fact should be considered forward-looking statements. A number of
important factors could cause actual results to differ materially from those
expressed in any forward-looking statements made by, or on behalf of, Arch,
Parent or MMC or their respective managements or boards of directors. Achieving
the anticipated benefits of the Merger and the Reorganization will depend in
significant part upon whether the integration of the two companies' businesses
is accomplished in an efficient manner, and there can be no assurance that this
will occur. The combination of the two companies will require, among other
things, coordination of administrative, sales and marketing, distribution, and
accounting and finance functions and expansion of information and management
systems. The integration process could divert the attention of management, and
any difficulties or problems encountered in the transition process could have a
material adverse effect on the Combined Company following the Merger. In
addition, the process of combining the companies could cause the interruption
of, or a loss of momentum in, the activities of the respective businesses,
which could also have a material adverse effect on the Combined Company. The
difficulty of combining the businesses may be increased by the need to
integrate personnel and the geographic distance separating the organizations.
There can be no assurance that Arch will retain key employees or that Arch will
realize any of the other anticipated benefits of the Merger. See "Risk
Factors".
The unaudited Combined Company Projections (the "Combined Company
Projections") contained herein have been prepared jointly by Arch and
MobileMedia as a projection of possible future results based upon the
assumptions set forth therein, and are dependent on many factors over which
neither Arch nor MobileMedia has any control. No assurance can be given that
any of the assumptions on which the Combined Company Projections are based will
prove to be correct. THE LAST REPORTED SALE PRICE OF ARCH COMMON STOCK WAS
$1.5625 PER SHARE ON DECEMBER 14, 1998. FOR PURPOSES OF PREPARING THE COMBINED
COMPANY PROJECTIONS, ARCH HAS ASSUMED THE MARKET VALUE OF THE ARCH COMMON STOCK
TO BE $2.00. SEE "RISK FACTORS--UNCERTAINTIES RELATED TO THE MERGER AND THE
REORGANIZATION--USE OF PRO FORMA ASSUMPTIONS" AND "THE COMBINED COMPANY--
UNAUDITED FINANCIAL PROJECTIONS AND OPERATIONAL COST SYNERGIES". ARCH AND
MOBILEMEDIA DO NOT AS A MATTER OF COURSE MAKE PUBLIC ANY PROJECTIONS AS TO
FUTURE PERFORMANCE OR EARNINGS. THE COMBINED COMPANY PROJECTIONS CONTAINED
HEREIN WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR COMPLIANCE WITH
(I) PUBLISHED GUIDELINES OF THE SEC, (II) THE GUIDELINES ESTABLISHED BY THE
AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING PROJECTIONS OR
(III) GAAP. ARTHUR ANDERSEN LLP, THE INDEPENDENT PUBLIC ACCOUNTANTS FOR ARCH,
HAS NEITHER COMPILED NOR EXAMINED SUCH PROJECTIONS AND, ACCORDINGLY, DOES NOT
EXPRESS ANY OPINION OR ANY OTHER FORM OF ASSURANCE WITH RESPECT TO, ASSUMES NO
RESPONSIBILITY FOR AND DISCLAIMS ANY ASSOCIATION WITH, SUCH PROJECTIONS. ERNST
& YOUNG LLP, THE INDEPENDENT AUDITORS FOR MOBILEMEDIA, HAS NEITHER COMPILED NOR
EXAMINED SUCH PROJECTIONS AND, ACCORDINGLY, DOES NOT EXPRESS ANY OPINION OR ANY
OTHER FORM OF ASSURANCE WITH RESPECT TO, ASSUMES NO RESPONSIBILITY FOR AND
DISCLAIMS ANY ASSOCIATION WITH, SUCH PROJECTIONS. WHILE PRESENTED WITH
NUMERICAL SPECIFICITY, SUCH PROJECTIONS ARE BASED UPON A VARIETY OF
ASSUMPTIONS, WHICH MAY NOT BE REALIZED, RELATING TO THE FUTURE BUSINESS AND
OPERATIONS OF ARCH AND MOBILEMEDIA AND THE INTEGRATION OF THEIR OPERATIONS AND
ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES AND CONTINGENCIES, ALL OF WHICH ARE
DIFFICULT TO PREDICT AND MANY OF WHICH ARE BEYOND THE CONTROL OF ARCH AND
MOBILEMEDIA. NEITHER ARCH, ON THE ONE HAND, NOR MOBILEMEDIA OR PARENT, ON THE
OTHER HAND, MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS TO THE
ATTAINABILITY OF THE PROJECTED FINANCIAL INFORMATION SET FORTH IN THE COMBINED
COMPANY PROJECTIONS OR AS TO THE ACCURACY OR COMPLETENESS OF THE ASSUMPTIONS
FROM WHICH THAT PROJECTED INFORMATION IS DERIVED.
FOR A DISCUSSION OF SOME OF THE FACTORS WHICH COULD CAUSE FUTURE RESULTS TO
VARY, SEE "RISK FACTORS".
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RISK FACTORS
In evaluating the proposed Merger and whether to exercise the Arch
Stockholder Rights, Arch stockholders should carefully consider the following
factors, as well as the other information included in this Proxy
Statement/Prospectus and the Annexes hereto.
UNCERTAINTIES RELATED TO THE MERGER AND THE REORGANIZATION
CHALLENGES OF BUSINESS INTEGRATION
There can be no assurance that the expectations regarding the future
operations of Arch following the Merger described in "The MobileMedia
Proposal--Recommendation of the Arch Board" will be fulfilled. The success of
the Merger will depend in part on the ability of Arch to effectively integrate
the businesses of Arch and MobileMedia. The process of integrating the
businesses of Arch and MobileMedia may involve unforeseen difficulties and may
require a disproportionate amount of time and attention of Arch's management
and financial and other resources of Arch following the Merger. Although it is
anticipated that the Merger will provide the opportunity for synergies and
efficiencies, there can be no assurance as to the timing or amount of
synergies or efficiencies that may ultimately be attained. Certain of the
anticipated benefits of the Merger may not be achieved if Arch's and
MobileMedia's existing operations are not successfully integrated in a timely
manner. The difficulties of such integration may initially be increased by the
necessity of coordinating geographically separate organizations and
integrating personnel with disparate business backgrounds and corporate
cultures. There can be no assurance that Arch will be able to successfully
integrate MobileMedia's operations or, even if successfully integrated, that
Arch's operating performance after the Merger will be successful. If Arch is
not successful in integrating MobileMedia's operations or if the integrated
operations fail to achieve market acceptance, Arch would be materially
adversely affected. In addition, following the Merger, the implementation of
Arch's business strategy will be subject to numerous other contingencies
beyond the control of Arch, including general and regional economic
conditions, interest rates, competition, changes in regulation and the ability
to attract and maintain skilled employees. As a result, no assurance can be
given that the Merger will be successful or that Arch's business strategies
will prove effective or that Arch will achieve its goals after the Merger. See
"Business--Arch--Business Strategy".
CERTAIN RISKS ASSOCIATED WITH THE MERGER
Arch is party to various contractual arrangements, including, without
limitation, credit agreements and indentures, under which the consummation of
the Merger and the other transactions contemplated by the Merger Agreement and
the Amended Plan could (i) result in a breach, violation, default or conflict,
(ii) give other parties thereto rights of termination or cancellation or (iii)
have other adverse consequences for Arch. The magnitude of any such adverse
consequences may depend upon, among other factors, the diligence and vigor
with which other parties to such arrangements may seek to assert any such
rights and pursue any such remedies, and the ability of Arch to resolve such
matters on acceptable terms. Under the indentures governing notes issued by
Arch and its wholly owned subsidiary, Arch Communications, Inc. ("ACI"),
having an aggregate principal balance of approximately $722.8 million as of
September 30, 1998, Arch and ACI would be obligated to offer to repurchase
such notes at the aggregate principal amount of such notes, plus accrued and
unpaid interest and liquidated damages, upon a change of control as defined
therein. Arch believes that consummation of the Merger and the other
transactions contemplated by the Merger Agreement and the Amended Plan will
not constitute such a change in control. Although it is expected that the
foregoing matters will not have a material adverse effect on Arch, there can
be no assurance that the other parties to such agreements and indentures will
not allege that the Merger constitutes either a breach or default or a change
in control of Arch. See "Description of Certain Arch Indebtedness".
TRANSACTION COSTS
Arch estimates that it will incur direct transaction costs of approximately
$25.0 million associated with the Merger. This amount is a preliminary
estimate only and is therefore subject to change. In addition, if Arch
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stockholders do not approve the MobileMedia Proposal and the Charter Amendment
Proposal at the Special Meeting, Parent and MMC could terminate the Merger
Agreement and Arch may be required to pay a $32.5 million termination fee to
Parent. See "The Merger Agreement--Certain Covenants and Agreements". There
can be no assurance that Arch will not incur significant additional costs in
connection with the Merger.
SUBSTANTIAL AMORTIZATION CHARGES
A significant effect of using purchase accounting treatment for the Merger
will be to record a substantial amount of goodwill and other intangible assets
which will result in substantial amortization charges to the consolidated
income of Arch over the useful lives of such assets. The incremental amount of
such charges is estimated to be approximately $26.0 million per year for ten
years; however, actual charges could vary significantly in the event the
underlying assets are impaired or the related useful lives of such assets are
less than currently estimated. See "Unaudited Selected Pro Forma Consolidated
Financial Data".
USE OF PRO FORMA ASSUMPTIONS
For purposes of presenting the pro forma condensed consolidated financial
statements included in this Proxy Statement/Prospectus, Arch has assumed the
market value of the Arch Common Stock issued pursuant to the Merger Agreement
and the Amended Plan will be $2.00. On December 14, 1998, the closing market
price of Arch Common Stock was $1.5625. See "Prospectus Summary--The Merger
and The Reorganization--The Proposed Transaction" and "Unaudited Pro Forma
Condensed Consolidated Financial Statements".
POSSIBLE ADVERSE EFFECT ON MARKET PRICE OF COMMON STOCK OF SHARES ELIGIBLE FOR
FUTURE SALE
Upon consummation of the Merger, 122.8 million shares of Arch Common Stock
(assuming no exercise of any Arch Stockholder Rights) will be issued to the
Unsecured Creditors. In addition, 48,568,825 million shares of Arch Common
Stock will be issuable upon exercise of the Arch Participation Warrants
issuable in connection with the Merger (assuming no exercise of any Arch
Stockholder Rights). The issuance of these shares of Arch Common Stock,
together with the issuance of Arch Common Stock under Arch compensation plans,
will substantially dilute the proportionate equity interests of the holders of
the Arch Common Stock or Series C Preferred Stock. In addition, the conversion
price of the Series C Preferred Stock may be subject to antidilution
adjustments if the market price of the Arch Common Sock exceeds $2.00 at the
record date for the Arch Rights Offering, which would result in additional
shares of Arch Common Stock being issuable upon conversion of the Series C
Preferred Stock. No prediction can be made as to the effect, if any, that
future sales of Arch Common Stock, or the availability of shares for future
sales, will have on the market price of the Arch Common Stock prevailing from
time to time. Sales of substantial amounts of Arch Common Stock (including
shares issued upon exercise of warrants or options), or the perception that
such sales could occur, could adversely affect prevailing market prices of
Arch Common Stock.
POSSIBLE INABILITY TO EXERCISE ARCH PARTICIPATION WARRANTS
A current prospectus covering Arch Common Stock issuable upon exercise of
the Arch Participation Warrants must be in effect before Arch may accept
warrant exercises. There can be no assurance Arch will be able to have a
prospectus in effect when this Proxy Statement/Prospectus is no longer
current. See "The Merger Agreement--Related Agreements--Registration Rights
Agreement".
RISKS COMMON TO ARCH AND MOBILEMEDIA
GROWTH AND ACQUISITION STRATEGY
Arch believes that the paging industry has experienced, and will continue to
experience, consolidation due to factors that favor larger, multi-market
paging companies, including (i) the ability to obtain additional radio
spectrum, (ii) greater access to capital markets and lower costs of capital,
(iii) broader geographic coverage of
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paging systems, (iv) economies of scale in the purchase of capital equipment,
(v) operating efficiencies and (vi) enhanced access to executive personnel.
Arch has pursued, and, if the Merger is consummated, Arch intends for the
Combined Company to continue to pursue, acquisitions of paging businesses as a
key component of its growth strategy. However, the process of integrating
acquired paging businesses may involve unforeseen difficulties and may require
a disproportionate amount of the time and attention of Arch's management. No
assurance can be given that suitable acquisitions can be identified, financed
and completed on acceptable terms, or that any future acquisitions by Arch
will be successful. See "Business--Arch--Paging and Messaging Services,
Products and Operations".
Implementation of Arch's growth strategy will be subject to numerous other
contingencies beyond the control of its management. These contingencies
include national and regional economic conditions, interest rates,
competition, changes in regulation or technology and the ability to attract
and retain skilled employees. Accordingly, no assurance can be given that
Arch's growth strategy will prove effective or that its goals will be
achieved. See "Business--Arch--Business Strategy" and "--Competition".
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING
Arch's business strategy requires the availability of substantial funds to
finance the continued development and future growth and expansion of its
operations, including possible acquisitions. The amount of capital required by
Arch following the Merger will depend upon a number of factors, including
subscriber growth, the type of paging devices and services demanded by
customers, service revenues, technological developments, marketing and sales
expenses, competitive conditions, the nature and timing of Arch's N-PCS
strategy and acquisition strategies and opportunities. No assurance can be
given that additional equity or debt financing will be available to Arch when
needed on acceptable terms, if at all. The unavailability of sufficient
financing when needed would have a material adverse effect on Arch. See
"Business--Arch Management's Discussion and Analysis of Financial Condition
and Results of Operations--Liquidity and Capital Resources" and "Description
of Certain Arch Indebtedness".
COMPETITION AND TECHNOLOGICAL CHANGE
Arch and MobileMedia each face competition from other paging service
providers in all markets in which they operate, as well as from certain
competitors who hold nationwide licenses. Monthly fees for basic paging
services have, in general, declined in recent years, due in part to
competitive conditions, and Arch may face significant price-based competition
in the future which could have a material adverse effect on Arch. Certain
competitors of Arch and MobileMedia possess greater financial, technical and
other resources than will Arch following the Merger. A trend towards
increasing consolidation in the paging industry in particular and the wireless
communications industry in general in recent years has led to competition from
increasingly larger and better capitalized competitors. If any of such
competitors were to devote additional resources to the paging business or
focus on Arch's or MobileMedia's particular markets, there could be a material
adverse effect on the Combined Company following the Merger.
Competitors are currently using and developing a variety of two-way paging
technologies. Neither Arch nor MobileMedia presently provides such two-way
services, other than as a reseller. Although such services generally are
higher priced than traditional one-way paging services, technological
improvements could result in increased capacity and efficiency for such two-
way paging technologies and, accordingly, could result in increased
competition for Arch and/or MobileMedia. Future technological advances in the
telecommunications industry could increase new services or products
competitive with the paging services provided by Arch and MobileMedia or could
require Arch or MobileMedia to reduce the price of their paging services or
incur additional capital expenditures to meet competitive requirements. Recent
and proposed regulatory changes by the FCC are aimed at encouraging such
technological advances and new services. Other forms of wireless two-way
communications technology, including cellular and broadband personal
communications services ("PCS"), and specialized mobile radio services, also
compete with the paging services that Arch and MobileMedia
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currently provide. While such services are primarily focused on two-way voice
communications, service providers are, in many cases, electing to provide
paging services as an adjunct to their primary services. Technological change
also may affect the value of the pagers owned by Arch and MobileMedia and
leased to their respective subscribers. If Arch's or MobileMedia's subscribers
request more technologically advanced pagers, including, but not limited to,
two-way pagers, Arch or MobileMedia could incur additional inventory costs and
capital expenditures if required to replace pagers leased to its subscribers
within a short period of time. Such additional investment or capital
expenditures could have a material adverse effect on Arch and MobileMedia.
There can be no assurance that Arch or MobileMedia will be able to compete
successfully with current and future competitors in the paging business or
with competitors offering alternative communication technologies. See
"Industry Overview--Competition".
GOVERNMENT REGULATION, FOREIGN OWNERSHIP AND POSSIBLE REDEMPTION
The paging operations of Arch and MobileMedia are subject to regulation by
the FCC and various state regulatory agencies. The FCC paging licenses granted
to Arch and MobileMedia are for varying terms of up to 10 years, at the end of
which renewal applications must be approved by the FCC. In the past, paging
license renewal applications generally have been granted by the FCC upon a
showing of compliance with FCC regulations and of adequate service to the
public. With the exception of the pending FCC proceeding regarding
MobileMedia's qualifications to remain an FCC licensee (see "The MobileMedia
Proposals--Regulatory Approvals"), Arch and MobileMedia are unaware of any
circumstances which would prevent the grant of any pending or future renewal
applications; however, no assurance can be given that any of Arch's or
MobileMedia's renewal applications will be free of challenge or will be
granted by the FCC. It is possible that there may be competition for radio
spectrum associated with licenses as they expire, thereby increasing the
chances of third party interventions in the renewal proceedings. Other than
those renewal applications still pending, the FCC has thus far granted each
license renewal application that Arch and MobileMedia have filed. There can be
no assurance that the FCC and various state regulatory agencies will not
propose or adopt regulations or take actions that would have a material
adverse effect on Arch or MobileMedia or, if the Merger is consummated, on the
Combined Company following the Merger.
The FCC's review and revision of rules affecting paging companies is ongoing
and the regulatory requirements to which Arch and MobileMedia are subject may
change significantly over time. For example, the FCC has decided to adopt a
market area licensing scheme for all paging channels under which carriers
would be licensed to operate on a particular channel throughout a broad
geographic area (for example, a Major Trading Area as defined by Rand McNally)
rather than being licensed on a site-by-site basis. These geographic area
licenses will be awarded pursuant to auction. Incumbent paging licensees that
do not acquire licenses at auction will be entitled to interference protection
from the market area licensee. Arch and MobileMedia are each participating
actively in this proceeding in order to protect their existing operations and
retain flexibility, on an interim and long-term basis, to modify systems as
necessary to meet subscriber demands. The FCC has issued a Further Notice of
Proposed Rulemaking in which the FCC seeks comments on, among other matters,
whether it should impose coverage requirements on licensees with nationwide
exclusivity (such as Arch and MobileMedia), whether these coverage
requirements should be imposed on a nationwide or regional basis, and
whether--if such requirements are imposed--failure to meet the requirements
should result in a revocation of the entire nationwide license or merely a
portion of the license. If the FCC were to impose stringent coverage
requirements on licensees with nationwide exclusivity, Arch and MobileMedia
might have to accelerate the build-out of their systems in certain areas.
Changes in regulation of Arch's and MobileMedia's paging businesses or the
allocation of radio spectrum for services that compete with Arch's and
MobileMedia's business could adversely affect their results of operations. In
addition, some aspects of the Telecommunications Act of 1996 (the
"Telecommunications Act") may place additional burdens upon Arch and
MobileMedia or subject them to increased competition. For example, the FCC has
adopted new rules that govern compensation to be paid to pay phone providers
which has resulted in increased costs for certain paging services including
toll-free 1-800 number paging. Arch and MobileMedia have generally passed
these costs on to their subscribers, which makes their services more
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expensive and which could affect the attraction or retention of customers;
however, there can be no assurance that Arch and MobileMedia will be able to
continue to pass on these costs. These rules are the subject of several
judicial appeals. In addition, the FCC also has adopted new rules regarding
payments by telecommunications companies into a revamped fund that will
provide for the widespread availability of telecommunications services,
including to low-income consumers ("Universal Service"). Prior to the
implementation of the Telecommunications Act, Universal Service obligations
largely were met by local telephone companies, supplemented by long-distance
telephone companies. Under the new rules, certain telecommunications carriers,
including Arch and MobileMedia, are required to contribute to a revised fund
created for Universal Service (the "Universal Service Fund"). In addition,
certain state regulatory authorities have enacted, or have indicated that they
intend to enact, similar contribution requirements based on state revenues.
Neither Arch nor MobileMedia can yet know the impact of these state
contribution requirements, if enacted and applied to Arch and MobileMedia.
Moreover, neither Arch nor MobileMedia is able at this time to estimate the
amount of any such payments that it will be able to bill to their subscribers;
however, payments into the Universal Service Fund will likely increase the
cost of doing business.
Moreover, in a rulemaking proceeding pertaining to interconnection between
local exchange carriers ("LECs") and commercial mobile radio services ("CMRS")
providers such as MobileMedia and Arch, the FCC has concluded that LECs are
required to compensate CMRS providers for the reasonable costs incurred by
such providers in terminating traffic that originates on LEC facilities, and
vice versa. Consistent with this ruling, the FCC has determined that LECs may
not charge a CMRS provider or other carrier for terminating LEC-originated
traffic or for dedicated facilities used to deliver LEC-originated traffic to
one-way paging networks. Nor may LECs charge CMRS providers for number
activation and use fees. These interconnection issues are still in dispute,
and it is unclear whether the FCC will maintain its current position.
Depending on further FCC disposition of these issues, Arch and MobileMedia may
or may not be successful in securing refunds, future relief or both, with
respect to charges for termination of LEC-originated local traffic. If these
issues are ultimately resolved by the FCC in favor of CMRS providers, then
Arch and MobileMedia will pursue relief through settlement negotiations,
administrative complaint procedures or both. If these issues are ultimately
decided in favor of the LECs, Arch and MobileMedia likely would be required to
pay all past due contested charges and may also be assessed interest and late
charges for the withheld amounts. Although these requirements have not to date
had a material adverse effect on Arch or MobileMedia, these or similar
requirements could in the future have a material adverse effect on Arch or
MobileMedia. See "Industry Overview--Regulation".
The Communications Act also limits foreign investment in and ownership of
entities that are licensed as radio common carriers by the FCC. Arch and
MobileMedia own or control several radio common carriers and are accordingly
subject to these foreign investment restrictions. Because Arch and MobileMedia
are each individually parents of radio common carriers (but are not radio
common carriers themselves), Arch and MobileMedia may not have more than 25%
of their stock owned or voted by aliens or their representatives, a foreign
government or its representatives or a foreign corporation if the FCC finds
that the public interest would be served by denying such ownership. In
connection with the World Trade Organization Agreement (the "WTO Agreement")--
agreed to by 69 countries--the FCC adopted rules effective February 9, 1998
that create a very strong presumption in favor of permitting a foreign
interest in excess of 25% if the foreign investor's home market country signed
the WTO Agreement. Arch's and MobileMedia's subsidiaries that are radio common
carrier licensees are subject to more stringent requirements and may have only
up to 20% of their stock owned or voted by aliens or their representatives, a
foreign government or their representatives or a foreign corporation. This
ownership restriction is not subject to waiver. See "Industry Overview--
Regulation". Arch's Restated Certificate of Incorporation permits the
redemption of shares of Arch's capital stock from foreign stockholders where
necessary to protect FCC licenses held by Arch or its subsidiaries, but such
redemption would be subject to the availability of capital to Arch and any
restrictions contained in applicable debt instruments and under the DGCL
(which currently would not permit any such redemptions). The failure to redeem
such shares promptly could jeopardize the FCC licenses held by Arch or its
subsidiaries (including MobileMedia following the Merger). See "--High Degree
of Leverage After the Merger", "--Competition and Technological Change" and
"Industry Overview--Regulation".
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HIGH DEGREE OF LEVERAGE AFTER THE MERGER
Each of Arch and MobileMedia is, and after the consummation of the Merger
Arch expects the Combined Company will continue to be, highly leveraged. At
September 30, 1998, Arch's total debt was $992.8 million compared with total
assets of $942.4 million and Arch's latest nine-month annualized EBITDA (net
of restructuring charges, equity in loss of affiliates, income tax benefit,
interest and non-operating expenses (net) and extraordinary items) ("Arch
Adjusted EBITDA") was $140.7 million. At September 30, 1998 MobileMedia's
total debt was $905.7 million compared with total assets of $577.3 million and
its latest nine-month annualized EBITDA (representing earnings before other
income (expense), taxes, depreciation, amortization, impairment of long-lived
assets, amortization of deferred gain on tower sale and restructuring costs)
("MobileMedia Adjusted EBITDA") was $124.1 million at September 30, 1998.
After giving effect to the Merger, the sale of MMC's transmission towers and
related real property (the "MobileMedia Tower Site Sale"), the elimination of
indebtedness of MobileMedia as contemplated by the Amended Plan and the
incurrence of additional indebtedness by Arch in connection with the Merger
and the Amended Plan on a pro forma basis (but excluding the impact of
expected operational cost synergies), the Combined Company would have had
long-term debt of $1.3 billion compared with total assets of $1.6 billion and
latest nine-month annualized Adjusted Combined EBITDA of $254.6 million
at September 30, 1998. See "--Risks Related to Arch--Arch's Indebtedness and
High Degree of Leverage", "Selected Historical Consolidated Financial and
Operating Data--Arch", "--MobileMedia", and "Unaudited Selected Pro Forma
Consolidated Financial Data".
SUBSCRIBER TURNOVER
The results of operations of wireless messaging service providers, such as
Arch and MobileMedia, can be significantly affected by subscriber
cancellations. Since filing for bankruptcy protection on January 30, 1997,
MobileMedia has experienced a significant decline in subscribers. At September
30, 1998, MobileMedia had 3,182,207 units in service compared to 3,440,342
units in service at December 31, 1997. The sales and marketing costs
associated with attracting new subscribers are substantial relative to the
costs of providing service to existing customers. Because the paging business
is characterized by high fixed costs, cancellations directly and adversely
affect EBITDA. An increase in the subscriber cancellation rate could have a
material adverse effect on Arch or MobileMedia. See "Business--MobileMedia--
Sales and Marketing".
DEPENDENCE ON THIRD PARTIES
Neither Arch nor MobileMedia manufactures any of the pagers used in their
respective paging operations. Arch and MobileMedia each buy pagers primarily
from Motorola and NEC America Inc. and therefore are dependent on such
manufacturers to obtain sufficient pager inventory for new subscriber and
replacement needs. In addition, Arch and MobileMedia purchase terminals and
transmitters primarily from Glenayre Electronics, Inc. and Motorola and thus
are dependent on such manufacturers for sufficient terminals and transmitters
to meet their expansion and replacement requirements. To date, neither Arch
nor MobileMedia (other than, in the case of MobileMedia, in the period leading
up to MobileMedia's bankruptcy filing) has experienced significant delays in
obtaining pagers, terminals or transmitters, but there can be no assurance
that neither Arch nor MobileMedia will experience such delays in the future.
Arch's purchase agreement with Motorola expires on June 19, 1999, although it
contains a provision for one-year term renewals. MobileMedia's agreement with
Motorola will expire on February 6, 1999, although it provides for one-year
term renewals. In addition, at the Effective Time, MobileMedia will need to
provide Motorola with credit support in respect of MobileMedia's obligations
to Motorola. There can be no assurance that Arch's or MobileMedia's respective
agreements with Motorola will be renewed or, if renewed, that such agreements
will be on terms and conditions as favorable to Arch or MobileMedia as those
under the current agreements. Although Arch believes that sufficient
alternative sources of pagers, terminals and transmitters exist, there can be
no assurance that Arch would not be materially adversely affected if it were
unable to obtain these items from current supply sources or on terms
comparable to existing terms. See "Business--Arch--Sources of Equipment" and
"--MobileMedia--Sources of Equipment". Finally, Arch and MobileMedia rely on
third parties to provide satellite transmission for some aspects of their
paging
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services. To the extent there are satellite outages or if satellite coverage
is otherwise impaired, Arch and MobileMedia may experience a loss of service
until such time as satellite coverage is restored, which could have a material
adverse effect on Arch or MobileMedia.
POSSIBLE ACQUISITION TRANSACTIONS
Arch believes that the paging industry will undergo further consolidation,
and Arch expects to participate in such continued industry consolidation. Arch
has evaluated and expects to continue to evaluate possible acquisition
transactions on an ongoing basis and at any given time may be engaged in
discussions with respect to possible acquisitions or other business
combinations. The process of integrating acquired paging businesses may
involve unforeseen difficulties and may require a disproportionate amount of
the time and attention of Arch's management and financial and other resources.
No assurance can be given that suitable acquisition transactions can be
identified, financed and completed on acceptable terms, that Arch's future
acquisitions will be successful, or that Arch will participate in any future
consolidation of the paging industry. See "Business--Arch Management's
Discussion and Analysis of Financial Condition and Results of Operations".
DEPENDENCE ON KEY PERSONNEL
The success of Arch will depend, to a significant extent, upon the continued
services of a relatively small group of executive personnel. Arch does not
have employment agreements with, or maintain life insurance on the lives of,
any of its current executive officers, although certain executive officers
have entered into non-competition agreements and all executive officers have
entered into executive retention agreements with Arch. The loss or
unavailability of one or more of its executive officers or the inability to
attract or retain key employees in the future could have a material adverse
effect on Arch. See "Business--Arch Management".
IMPACT OF THE YEAR 2000 ISSUE
The Year 2000 problem is the result of computer programs being written using
two digits (rather than four) to define the applicable year. Any of the
Combined Company's programs that have time-sensitive software may recognize a
date using "00" as the year 1900 rather than the year 2000. This could result
in a system failure or miscalculations causing disruptions of operations,
including, among other things, a temporary inability to process transactions,
send invoices or engage in similar normal business activities. As a result,
within the next year the computerized systems (including both information and
non-information technology systems) and applications used by the Combined
Company will need to be reviewed, evaluated and, if and where necessary,
modified or replaced to ensure that all financial, information and operating
systems are Year 2000 compliant.
ARCH
Arch has created a cross-functional project group (the "Y2K Project Group")
to work on the Year 2000 problem. The Y2K Project Group is finishing its
analysis of external and internal areas likely to be affected by the Year 2000
problem. It has classified the identified areas of concern into either a
mission critical or non-mission critical status. For the external areas, Arch
has distributed vendor surveys to its primary and secondary vendors. The
surveys requested information about hardware and/or software supplied by
information technology vendors as well as non-information technology system
vendors that might use embedded technologies in their systems or products.
Information was requested regarding the vendor's Year 2000 compliance
planning, timing, status, testing and contingency planning. As part of its
evaluation of Year 2000 vulnerability related to its pager and paging
equipment vendors, Arch has discussed with them their efforts to identify
potential issues associated with their equipment and/or software and has
concluded that, to the extent any vulnerability exists, it has been addressed.
Internally, Arch has initiated an inventory audit of hardware and software
testing for both its corporate and divisional operations. These areas of
operation include: information systems, finance, operations, inventory,
billing, pager activation and purchasing. Additional testing is scheduled to
conclude in the first quarter of 1999.
Arch expects that it will incur costs to replace existing hardware, software
and paging equipment, which will be capitalized and amortized in accordance
with Arch's existing accounting policies, while maintenance or
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modification costs will be expensed as incurred. Arch has upgraded hardware to
enable compliance testing to be performed on dedicated test equipment in an
isolated production-like environment. Based on Arch's costs incurred to date,
as well as estimated costs to be incurred over the next fourteen months, Arch
does not expect that resolution of the Year 2000 problem will have a material
adverse effect on its results of operations and financial condition. Costs of
the Year 2000 project are based on current estimates and actual results may
vary significantly from such estimates once detailed plans are developed and
implemented.
While it is Arch's stated goal to be compliant, on an internal basis, by
September 30, 1999, Arch may face the possibility that one or more of its
mission critical vendors, such as its utility providers, telephone carriers or
satellite carriers, may not be Year 2000 compliant. Because of the unique
nature of such vendors, alternative providers of these services may not be
available. Additionally, although Arch has initiated its test plan for its
business-related hardware and software applications, there can be no assurance
that such testing will detect all applications that may be affected by the
Year 2000 problem. Lastly, Arch does not manufacture any of the pagers or
paging-related equipment used by its customers or for its own paging
operations. Although Arch has initiated testing of such equipment it has
relied to a large extent on the representations of its vendors with respect to
their readiness. Arch can offer no assurances as to the accuracy of such
vendors' representations.
Arch has initiated the process of designing and implementing contingency
plans relating to the Year 2000 problem. To this end, each department will
identify the likely risks and determine commercially reasonable solutions. The
Y2K Project Group will collect and review the determinations on both a
department-by-department and company-wide basis. Arch intends to complete its
Year 2000 contingency planning during calendar year 1999.
MOBILEMEDIA
MobileMedia has formed an internal task force comprised of representatives
of its various relevant departments to address Year 2000 compliance matters.
The task force has undertaken a preliminary review of internal and external
areas that are likely to be affected by Year 2000 compliance matters and has
classified the various areas as mission critical, important or non-
critical/non-important. MobileMedia also expects to hire outside consultants
to review MobileMedia's testing methodology and test results, to assess its
contingency planning and to provide general oversight relating to Year 2000
compliance matters.
With respect to internal matters, MobileMedia has completed a review of its
hardware and software to determine whether its business-related applications
(including applications relating to distribution, finance, inventories,
operations, pager activation, purchasing and sales/marketing) will be year
2000 compliant. In addition, in the last quarter of 1998, programs designed to
identify Year 2000 problems associated with dates embedded in certain
business-related files were created and run to identify any Year 2000
compliance issues. While the results of the tests are still being analyzed,
relatively few Year 2000 problems were identified. Additional testing is
scheduled for the first quarter of 1999, including testing of MobileMedia's
financial and human resource software packages. There can be no assurance,
however, that such testing has, or will, detect all compliance issues related
to the Year 2000 problem.
With respect to external matters, MobileMedia has distributed questionnaires
and requests for certification to its mission critical vendors and is in the
process of obtaining and reviewing the responses thereto. The questionnaires
have requested information concerning embedded technologies of such vendors,
the hardware and software applications used by such vendors and the Year 2000
compliance efforts of such vendors relating thereto.
Estimated Year 2000 Compliance Costs
MobileMedia has an information technology staff of approximately 68 people
that has addressed technical issues relating to the Year 2000 compliance
matters. To date, MobileMedia has incurred approximately $50,000 in costs
(excluding in-house labor and hardware) in connection with Year 2000
compliance matters. In addition, MobileMedia has purchased upgraded hardware
at a cost of approximately $150,000 for use as redundant
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equipment in testing for Year 2000 problems in an isolated production
environment. MobileMedia estimates that it will expend approximately $200,000
on additional software and other items related to the Year 2000 compliance
matters.
In addition, MobileMedia estimates that it will incur approximately $200,000
in costs relating to Year 2000 remediation efforts for its paging network
hardware. MobileMedia has also upgraded its paging network hardware over the
fiscal year 1998 and plans further upgrades in fiscal year 1999. Such upgrades
have not been and are not expected to be purchased solely for remediation of
the Year 2000 compliance problems; such upgrades are not themselves expected
to have Year 2000 compliance problems.
Risks relating to Year 2000 Compliance Matters
MobileMedia has a goal to become Year 2000 compliant with respect to
internal matters during calendar year 1999. Although MobileMedia has begun and
is undertaking testing of its internal business-related hardware and software
applications, there can be no assurances that such testing will detect all
applications that may be affected by Year 2000 compliance problems. With
respect to external matters, due to the multi-dependent and interdependent
issues raised by Year 2000 compliance, including many factors beyond its
control, MobileMedia may face the possibility that one or more of its mission
critical vendors, such as its utilities, telephone carriers, equipment
manufacturers or satellite carriers, may not be Year 2000 compliant on a
timely basis. Because of the unique nature of such vendors, alternate
providers may not be available. Finally, MobileMedia does not manufacture any
of the pagers, paging-related hardware or network equipment used by
MobileMedia or its customers in connection with MobileMedia's paging
operations. Although MobileMedia has tested such equipment, it has also relied
upon the representations of its vendors with respect to their Year 2000
readiness. MobileMedia can give no assurance as to the accuracy of such
vendors' representations.
Contingency Planning
MobileMedia has begun the process of assessing contingency plans that might
be available in the event of either internal or external Year 2000 compliance
problems. To this end, MobileMedia's various internal departments have begun
to prepare assessments of potential contingency alternatives. The Task Force
will undertake a review of these assessments in respect of application of
contingency plans on a department-by-department basis and on a company-wide
basis. MobileMedia intends to complete its contingency planning in respect of
Year 2000 compliance during calendar year 1999.
NO DIVIDENDS
Neither Arch nor MobileMedia has ever declared or paid cash dividends.
Neither Arch nor MobileMedia intends, and if the Merger is consummated Arch
does not intend, to declare or pay any cash dividends in the foreseeable
future. Certain covenants in the bank credit facility (the "API Credit
Facility") of Arch Paging, Inc. ("API"), an indirect wholly owned subsidiary
of Arch, and in other Arch debt instruments, effectively prohibit the
declaration or payment of cash dividends by Arch for the foreseeable future.
In addition, the terms of the Series C Preferred Stock generally prohibit the
payment of cash dividends on Arch Common Stock unless all accrued and unpaid
dividends on the Series C Preferred Stock are paid in full. See "Market Price
Information and Dividend Policy", "Description of Arch Securities--Arch Series
C Preferred Stock" and "Description of Certain Arch Indebtedness".
HISTORY OF LOSSES
Since their respective inceptions, Arch has not reported any net income
while MobileMedia reported net income of $42.3 million in the nine months
ended September 30, 1998 resulting from a gain of $94.1 million on the sale of
its tower site assets. Arch reported net losses of $36.6 million, $114.7
million, $181.9 million and $157.8 million in the fiscal years ended December
31, 1995, 1996 and 1997 and the nine months ended September 30, 1998,
respectively. MobileMedia reported net losses of $41.1 million, $1.1 billion
and $124.6
23
<PAGE>
million in the years ended December 31, 1995, 1996 and 1997 and net income of
$42.3 million in the nine months ended September 30, 1998, respectively, and
has operated as a debtor-in-possession under Chapter 11 from January 30, 1997
to the present. For the year ended December 31, 1997 and the nine months ended
September 30, 1998, and after giving effect to the Merger and the Related
Transactions (as defined below), Arch would have incurred, on a pro forma
basis, a loss before extraordinary item of $313.3 million and $127.2 million,
respectively. See Arch's Consolidated Financial Statements and MobileMedia's
Consolidated Financial Statements included elsewhere herein and "Arch
Communications Group, Inc. Unaudited Pro Forma Condensed Consolidated
Statement of Operations".
For both Arch and MobileMedia, these historical net losses have resulted
principally from substantial depreciation and amortization expense, primarily
related to intangible assets and pager depreciation, interest expense, the
impairment of long-lived assets (in the case of MobileMedia) and other costs
of growth. Substantial and increased amounts of debt are expected to be
outstanding for the foreseeable future, which will result in significant
additional interest expense which could have a material adverse effect on Arch
following the Merger. See "--Future Capital Needs; Uncertainty of Additional
Funding" and "--High Degree of Leverage After the Merger". Arch expects to
continue to report net losses for the foreseeable future, whether or not the
Merger is consummated. See "Business--Arch Management's Discussion and
Analysis of Financial Condition and Results of Operations", "--MobileMedia
Management's Discussion and Analysis of Financial Condition and Results of
Operations", Arch's Consolidated Financial Statements and MobileMedia's
Consolidated Financial Statements included elsewhere herein.
VOLATILITY OF TRADING PRICE
The market price of Arch Common Stock is subject to significant fluctuation
and has recently declined. Between November 1, 1997 and December 14, 1998, the
reported sale price of Arch Common Stock on the NNM has ranged from a low of
$.6875 per share (in October 1998) to a high of $8.00 per share (in November
1997). The trading price of Arch Common Stock following the Merger will likely
be affected by numerous factors, including the risk factors set forth herein,
as well as prevailing economic and financial trends and conditions in the
public securities markets. During recent periods, share prices of paging
companies such as Arch and Parent have exhibited a high degree of volatility.
Shortfalls in revenues or EBITDA from the levels anticipated by the public
markets could have an immediate and significant adverse effect on the trading
price of Arch Common Stock in any given period. Such shortfalls may result
from events that are beyond Arch's immediate control and can be unpredictable.
The trading price of Arch's shares may also be affected by developments,
including reported financial results and fluctuations in trading prices of the
shares of other publicly held companies in the paging industry generally,
which may not have any direct relationship with Arch's business or long-term
prospects. See "Market Price Information and Dividend Policy".
RISKS RELATING TO THE UNAUDITED COMBINED COMPANY PROJECTIONS
The managements of Arch and MobileMedia have jointly prepared the Combined
Company Projections contained herein in connection with the development of the
Amended Plan to present the projected effects of the Amended Plan and the
transactions contemplated thereby if the Merger is consummated. The Combined
Company Projections assume the Merger, the Amended Plan and the transactions
contemplated thereby will be implemented in accordance with their terms. The
assumptions and estimates underlying such Combined Company Projections are
inherently uncertain and are subject to significant business, economic and
competitive risks and uncertainties that could cause actual results to differ
materially from those projected, including, among others, those enumerated
therein or herein. Accordingly, the Combined Company Projections are not
necessarily indicative of the future financial condition or results of
operations of the Combined Company following the Merger, which may vary
significantly from those set forth in the Combined Company Projections.
Consequently, the projected financial information contained herein should not
be regarded as a representation by Arch, the advisors of Arch, Parent,
MobileMedia, the advisors of Parent and MobileMedia or any other person that
the Combined Company Projections can or will be achieved. See "Forward-Looking
Statements".
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<PAGE>
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS; POSSIBLE LOSS OF CORPORATE TAX
BENEFITS
It is anticipated that (S)382 of the Tax Code will limit the amount of
income earned by Arch after the Merger that may be offset by Arch's net
operating loss carryforwards and other tax attributes. It is also anticipated
that the net operating loss carryforwards and possibly other tax attributes of
MMC will be substantially reduced as a result of consummation of the Amended
Plan pursuant to (S)382 and (S)108 of the Tax Code. See "The MobileMedia
Proposal--Material Federal Income Tax Consequences".
RISKS RELATED TO ARCH
ARCH'S INDEBTEDNESS AND HIGH DEGREE OF LEVERAGE
Arch is highly leveraged. At September 30, 1998, Arch and its subsidiaries
had outstanding $992.8 million of total debt, including (i) $125.0 million
principal amount of ACI's 9 1/2% Senior Notes due 2004 (the "ACI 9 1/2%
Notes"), (ii) $100.0 million principal amount of ACI's 14% Senior Notes due
2004 (the "ACI 14% Notes"), (iii) $127.5 million principal amount of ACI's 12
3/4% Senior Notes due 2007 (the "ACI 12 3/4% Notes" and, together with the ACI
9 1/2% Notes and the ACI 14% Notes, the "ACI Notes"), (iv) $359.9 million
(accreted value) of Arch's 10 7/8% Senior Discount Notes due 2008 (the "Arch
Discount Notes"), (v) $13.4 million principal amount of Arch's 6 3/4%
Convertible Subordinated Debentures due 2003 (the "Arch Convertible
Debentures") and (vi) $267.0 million of borrowings under the API Credit
Facility. See "Description of Certain Arch Indebtedness". Arch's high degree
of leverage may have adverse consequences for Arch, including: (i) if
necessary, the ability of Arch to obtain additional financing for
acquisitions, working capital, capital expenditures or other purposes, may be
impaired or extinguished or such financing may not be available on acceptable
terms, if at all; (ii) a substantial portion of the Arch Adjusted EBITDA will
be required to pay interest expense, which will reduce the funds which would
otherwise be available for operations and future business opportunities; (iii)
the API Credit Facility and the indentures (the "Arch Indentures") under which
the ACI Notes are outstanding contain financial and restrictive covenants, the
failure to comply with which may result in an event of default which, if not
cured or waived, could have a material adverse effect on Arch; (iv) Arch may
be more highly leveraged than its competitors which may place it at a
competitive disadvantage; (v) Arch's high degree of leverage will make it more
vulnerable to a downturn in its business or the economy generally; and (vi)
Arch's high degree of leverage may impair its ability to participate in the
future consolidation of the paging industry. In April 1997, Arch reordered its
operating priorities to improve capital efficiency and strengthen its balance
sheet by placing a higher priority on leverage reduction than subscriber unit
growth. As part of its reordered operating priorities, Arch has implemented
various initiatives to reduce capital costs while sustaining acceptable levels
of unit and revenue growth. As a result, Arch's rate of internal growth in
pagers in service has slowed and is expected to remain below the rates of
internal growth previously achieved by Arch, but Arch has not yet reduced its
financial leverage significantly. There can be no assurance that Arch will be
able to reduce its financial leverage significantly or that Arch will achieve
an appropriate balance between growth which it considers acceptable and future
reductions in financial leverage. If Arch is not able to achieve continued
growth in EBITDA, it may be precluded from incurring additional indebtedness
due to cash flow coverage requirements under existing debt instruments. EBITDA
is not a measure defined in GAAP and should not be considered in isolation or
as a substitute for measures of performance prepared in accordance with GAAP.
Arch Adjusted EBITDA may not necessarily be comparable to similarly titled
data of other paging companies. See "Business--Arch Management's Discussion
and Analysis of Financial Condition and Results of Operations", "Description
of Certain Arch Indebtedness" and Arch's Consolidated Financial Statements and
Notes thereto included elsewhere herein.
MERGER CASH REQUIREMENTS
To fund the estimated cash payments required by the Merger of approximately
$347.0 million (consisting of $262.0 million to fund a portion of the cash
payments to MobileMedia's secured creditors and $85.0 million to fund
estimated administrative expenses, amounts to be outstanding at the Effective
Time under the DIP Credit Agreement and transaction expenses), API and The
Bank of New York, Toronto Dominion (Texas), Inc., Royal
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Bank of Canada and Barclays Bank, PLC executed a commitment letter for a
$200.0 million increase to the API Credit Facility (the "API Credit Facility
Increase") and ACI intends to issue $200.0 million of new senior notes (the
"Planned ACI Notes"). The API Credit Facility Increase was approved on
November 16, 1998 by all API lenders but remains subject to final
documentation. In addition, there can be no assurance that Arch will complete
an offering of the Planned ACI Notes on terms satisfactory to it, if at all.
As a result, ACI and The Bear Stearns Companies, Inc., TD Securities (USA),
Inc., the Bank and Royal Bank of Canada have executed a commitment letter for
a $120.0 million bridge facility (the "Bridge Facility") which would be
available to Arch in the absence of an offering of the Planned ACI Notes. The
Planned ACI Notes, the Bridge Facility and the Merger each require approval by
the Required Lenders (as defined in the API Credit Facility), and there can be
no assurance such approval will be granted. See "Description of Certain Arch
Indebtedness--Bridge Facility". If API's lenders do not grant the foregoing
approvals, and Arch is not able to arrange alternative financing to make the
cash payments required by the Merger and therefore could not consummate the
Merger, and Arch's failure to perform its obligations under the Merger
Agreement is not otherwise excused, Arch will be liable to pay the MobileMedia
Breakup Fee of $32.5 million to MMC. See "The Merger Agreement--Certain
Covenants and Agreements".
API CREDIT FACILITY, BRIDGE FACILITY AND INDENTURE RESTRICTIONS
The API Credit Facility, the Bridge Facility and the Arch Indentures impose
(or will impose) certain operating and financial restrictions on Arch. The API
Credit Facility requires API and, in certain cases, ACI, to maintain specified
financial ratios, among other obligations, including a maximum leverage ratio
and a minimum fixed charge coverage ratio, each as defined in the API Credit
Facility. In addition, the API Credit Facility limits or restricts, among
other things, API's ability to: (i) declare dividends or redeem or repurchase
capital stock; (ii) prepay, redeem or purchase debt; (iii) incur liens and
engage in sale/leaseback transactions; (iv) make loans and investments; (v)
incur indebtedness and contingent obligations; (vi) amend or otherwise alter
debt instruments and other material agreements; (vii) engage in mergers,
consolidations, acquisitions and asset sales; (viii) engage in transactions
with affiliates; and (ix) alter its lines of business or accounting methods.
In addition, the Bridge Facility and the Arch Indentures limit, among other
things: (i) the incurrence of additional indebtedness by Arch and its
Restricted Subsidiaries (as defined therein); (ii) the payment of dividends
and other restricted payments by Arch and its Restricted Subsidiaries; (iii)
asset sales; (iv) transactions with affiliates; (v) the incurrence of liens;
and (vi) mergers and consolidations. Arch's ability to comply with such
covenants may be affected by events beyond its control, including prevailing
economic and financial conditions. A breach of any of these covenants could
result in a default under the API Credit Facility, the Bridge Facility and/or
the Arch Indentures. Upon the occurrence of an event of default under the API
Credit Facility, the Bridge Facility or the Arch Indentures, the creditors
could elect to declare all amounts outstanding, together with accrued and
unpaid interest, to be immediately due and payable. If Arch were unable to
repay any such amounts, the creditors could proceed against the collateral
securing certain of such indebtedness. If the lenders under the API Credit
Facility accelerate the payment of such indebtedness, there can be no
assurance that the assets of Arch would be sufficient to repay in full such
indebtedness and the other indebtedness of Arch, including the Arch Notes and
any borrowings under the Bridge Facility. In addition, because the API Credit
Facility, the Bridge Facility and the Arch Indentures limit (or will limit)
the ability of Arch to engage in certain transactions except under certain
circumstances, Arch may be prohibited from entering into transactions that
could be beneficial to Arch including the Merger, which is subject to the
approval of the Required Lenders (as defined under the API Credit Facility).
Arch will be incurring additional indebtedness in connection with the Merger
and the Reorganization. See "--Merger Cash Requirements" and "Description of
Certain Arch Indebtedness".
POSSIBLE FLUCTUATIONS IN REVENUES AND OPERATING RESULTS
Arch believes that future fluctuations in its revenues and operating results
are possible as the result of many factors, including competition, subscriber
turnover, new service developments and technological change. Arch's current
and planned debt repayment levels are, to a large extent, fixed in the short
term, and are based in part on its expectations as to future revenues, and
Arch may be unable to adjust spending in a timely manner to compensate for any
revenue shortfall. Due to the foregoing or other factors, it is possible that
due to future
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fluctuations Arch's revenue or operating results may not meet the expectations
of securities analysts or investors, which may have a material adverse effect
on the price of Arch Common Stock. See "Market Price Information and Dividend
Policy" and "Business--Arch Management's Discussion and Analysis of Financial
Condition and Results of Operations".
RISK OF ARCH COMMON STOCK BEING DELISTED FROM THE NASDAQ NATIONAL MARKET
Arch Common Stock has been listed, and its shares have traded on the NNM
since January 17, 1992. In addition, it is a condition to the Merger that the
shares of Arch Common Stock to be issued in connection with the Merger be
approved for listing on the NNM. Arch has received a notice from the NNM
indicating that Arch fails to meet the NNM listing requirements because the
market price of the Arch Common Stock is less than $5.00 per share and that
unless Arch comes in compliance with the continued listing requirements of the
NNM, Arch Common Stock will be delisted. The rules of the NNM require that as
a condition of continued listing of a company's securities on the NNM a
company must satisfy at least one of several alternative maintenance
requirements, relating to specified financial parameters and the trading price
for listed securities. While Arch has requested a hearing from the NNM at
which it intends to seek the continued listing of Arch Common Stock on the NNM
based, in part, on the proposed Reverse Split (as defined herein), there can
be no assurance that the NNM will not delist the Arch Common Stock either
prior to or following the Merger. For a more detailed discussion of the
continued listing requirements of the NNM and the action Arch proposes to take
to come into compliance with such requirements, see "Item 3--Approval of Stock
Split Proposal".
DIVISIONAL REORGANIZATION OF ARCH
In June 1998, the Arch Board approved a reorganization of its operations
(the "Divisional Reorganization"). As part of such reorganization, which is
expected to be implemented over a period of 18 to 24 months, Arch has
consolidated its former Midwest, Western and Northern divisions into four
existing operating divisions and is in the process of consolidating certain
regional administrative support functions, such as customer service,
collections, inventory and billing, to reduce redundancy and to take advantage
of various operating efficiencies. Once fully implemented, the Divisional
Reorganization is expected to result in annual cost savings of approximately
$15.0 million. Arch expects to reinvest a portion of these cost savings to
expand its sales activities. In connection with the Divisional Reorganization,
Arch (i) anticipates a net reduction of approximately 10% of its workforce,
(ii) plans to close certain office locations and redeploy other real estate
assets and (iii) recorded a restructuring charge of $16.1 million in the
second quarter of 1998. The restructuring charge consisted of approximately
(i) $9.7 million for employee severance, (ii) $3.5 million for lease
obligations and terminations, (iii) $1.4 million for the writedown of fixed
assets and (iv) $1.5 million of other costs. There can be no assurance that
the expected cost savings will be achieved or that the reorganization of
Arch's business will be accomplished smoothly, expeditiously or successfully.
The difficulties of such reorganization may be increased by the need to
integrate MobileMedia's operations in multiple locations and to combine two
corporate cultures. The inability to successfully integrate the operations of
MobileMedia would have a material adverse effect on Arch. See "--Uncertainties
Related to the Merger and the Reorganization--Challenges of Business
Integration".
ANTI-TAKEOVER PROVISIONS
The Arch Certificate and the Arch By-laws include provisions for a
classified Board of Directors, the issuance of "blank check" preferred stock
(the terms of which may be fixed by the Arch Board without further stockholder
approval), a prohibition on stockholder action by written consent in lieu of a
meeting and certain procedural requirements governing stockholder meetings.
Arch also has a stockholders rights plan. In addition, Section 203 of the DGCL
will, with certain exceptions, prohibit Arch from engaging in any business
combination with any "interested stockholder" (as defined therein) for a
three-year period following the date that such stockholder becomes an
interested stockholder. Such provisions may have the effect of delaying,
making more difficult or preventing a change in control or acquisition of
Arch. See "Description of Arch Securities--Anti-Takeover Provisions".
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RISKS RELATED TO MOBILEMEDIA
DISRUPTION OF OPERATIONS PRIOR TO AND FOLLOWING BANKRUPTCY FILING
MobileMedia's business operations have been adversely affected by
integration difficulties following its acquisition of MobileComm and Dial
Page, by liquidity problems arising prior to its January 30, 1997 bankruptcy
filing and by the reluctance of some customers and potential customers to do
business with MobileMedia while it operates under Chapter 11. In addition, one
of MobileMedia's primary assets is its experienced employees, who have the
ability to leave MobileMedia and to deprive it of the skill and knowledge
essential for executing its business strategy. Any further deterioration of
MobileMedia's business, or the loss of significant numbers of key employees,
could have a material adverse effect on MobileMedia and, as a result, on Arch
if the Merger is consummated. See "The MobileMedia Plan of Reorganization" and
"Business--MobileMedia".
ASSUMPTIONS REGARDING VALUE OF MOBILEMEDIA ASSETS
For financial reporting purposes, the fair value of the assets of
MobileMedia must be determined as of the Effective Time. Although such
valuation is not presently expected to result in values that are materially
greater or less than the values assumed in the preparation of the unaudited
pro forma condensed consolidated financial statements and the Combined Company
Projections, there can be no assurance with respect thereto. See "Unaudited
Pro Forma Condensed Consolidated Financial Statements" and "The Combined
Company--Unaudited Financial Projections and Operational Cost Synergies".
RISKS RELATED TO THE ARCH RIGHTS OFFERING
MARKET RISKS IN EXERCISING RIGHTS
The exercise prices of the Arch Stockholder Rights and the Arch
Participation Warrants have been determined by negotiation among Arch, the
Debtors, the Unsecured Creditors Committee and the Standby Purchasers and are
not necessarily related to Arch's assets, net worth, results of operations or
other recognized criteria of value. There can be no assurance that the market
value of the Arch Combined Common Stock underlying the Arch Stockholder Rights
or the Arch Participation Warrants will not be below the valuation therefor
implied by the exercise price thereof between the time a holder exercises an
Arch Stockholder Right and the time the holder takes delivery of the Arch
Common Stock or at any time thereafter. The exercise of an Arch Stockholder
Right is irrevocable. Subscribed funds may not be withdrawn and no interest
will be paid thereon to the subscribers. See "The Arch Rights Offering--Terms
of the Arch Rights Offering".
DILUTION
The subscription price per Arch Stockholder Right will exceed the net
tangible book value per share of Arch Common Stock, which is a negative
number. See "Dilution". Accordingly, subscribers in the Arch Rights Offering
will experience immediate and substantial dilution.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The distribution to holders of Arch Common Stock and Series C Preferred
Stock of Arch Stockholder Rights and Arch Participation Warrants may be
taxable to such holders depending upon various factual determinations which
cannot be made at this time and as to which the interpretation of various
provisions of the tax law is uncertain. See "The MobileMedia Proposal--
Material Federal Income Tax Consequences".
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DILUTION
Arch stockholders will suffer immediate and substantial dilution upon
consummation of the Merger. An aggregate of 122.8 million shares of Arch
Combined Common Stock will either be contributed to the Creditor Stock Pool or
reserved for issuance upon exercise of Rights by Unsecured Creditors. This
will represent 82.7% of the total number of shares of Arch Common Stock
outstanding immediately following the Merger (assuming conversion of the
Series C Preferred Stock, no exercise of the Arch Stockholder Rights and no
exercise of the Arch Participation Warrants). As a result, stockholders of
Arch holding 100% of the outstanding capital stock of Arch prior to the Merger
will hold 17.3% of the outstanding capital stock of Arch immediately following
the Merger (as so computed). The issuance of Arch Combined Common Stock in the
Merger and upon the exercise of Rights may cause a dilution of earnings per
share which may negatively impact the market price of Arch Common Stock. There
can be no assurance that the market price of Arch Common Stock will not be
adversely affected, or that the pro forma financial information presented
herein will be indicative of future results.
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SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OPERATING DATA--ARCH
The following table sets forth selected historical consolidated financial
and operating data of Arch for each of the two years ended August 31, 1994,
the four months ended December 31, 1993 and 1994, each of the four years ended
December 31, 1997 and the nine months ended September 30, 1997 and 1998. The
selected financial and operating data as of December 31, 1994, 1995, 1996 and
1997 and for each of the three years ended December 31, 1997 have been derived
from Arch's audited consolidated financial statements and notes thereto. The
selected financial and operating data as of September 30, 1998 and for the
nine months ended September 30, 1997 and 1998 have been derived from Arch's
unaudited consolidated financial statements and notes thereto. The following
consolidated financial information should be read in conjunction with
"Business--Arch Management's Discussion and Analysis of Financial Condition
and Results of Operations" and Arch's Consolidated Financial Statements and
Notes thereto included elsewhere in this Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
FOUR MONTHS NINE MONTHS
YEAR ENDED ENDED ENDED
AUGUST 31, (1) DECEMBER 31, (1) YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------ ----------------- ----------------------------------------- --------------------
1993 1994 1993 1994 1994 (1) 1995 (1) 1996 1997 1997 1998
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENTS OF
OPERATIONS DATA:
Service, rental
and maintenance
revenues........ $ 39,610 $ 55,139 $16,457 $ 22,847 $ 61,529 $ 138,466 $ 291,399 $ 351,944 $ 261,570 $ 277,826
Product sales.... 5,698 12,108 2,912 5,178 14,374 24,132 39,971 44,897 34,029 31,811
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
Total revenues... 45,308 67,247 19,369 28,025 75,903 162,598 331,370 396,841 295,599 309,637
Cost of products
sold............ (4,031) (10,124) (2,027) (4,690) (12,787) (20,789) (27,469) (29,158) (22,044) (21,863)
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
41,277 57,123 17,342 23,335 63,116 141,809 303,901 367,683 273,555 287,774
Operating
expenses:
Service, rental
and
maintenance.... 9,532 13,123 3,959 5,231 14,395 29,673 64,957 79,836 59,227 60,812
Selling......... 7,307 10,243 3,058 4,338 11,523 24,502 46,962 51,474 39,019 36,902
General and
administrative. 13,123 17,717 5,510 7,022 19,229 40,448 86,181 106,041 78,878 84,527
Depreciation and
amortization... 13,764 16,997 5,549 6,873 18,321 60,205 191,871 232,347 179,917 164,990
Restructuring
charge......... -- -- -- -- -- -- -- -- -- 16,100
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
Operating income
(loss).......... (2,449) (957) (734) (129) (352) (13,019) (86,070) (102,015) (83,486) (75,557)
Interest and non-
operating
expenses, net... (2,861) (4,112) (1,132) (1,993) (4,973) (22,522) (75,927) (97,159) (72,436) (78,334)
Equity in loss of
affiliate (2)... -- -- -- -- -- (3,977) (1,968) (3,872) (2,828) (2,219)
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
Income (loss)
before income
tax benefit and
extraordinary
item............ (5,310) (5,069) (1,866) (2,122) (5,325) (39,518) (163,965) (203,046) (158,750) (156,110)
Income tax
benefit......... -- -- -- -- -- 4,600 51,207 21,172 15,900 --
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
Income (loss)
before
extraordinary
item............ (5,310) (5,069) (1,866) (2,122) (5,325) (34,918) (112,758) (181,874) (142,850) (156,110)
Extraordinary
item (3)........ (415) -- -- (1,137) (1,137) (1,684) (1,904) -- -- (1,720)
-------- -------- ------- -------- -------- --------- --------- --------- --------- ---------
Net income
(loss).......... $ (5,725) $ (5,069) $(1,866) $ (3,259) $ (6,462) $ (36,602) $(114,662) $(181,874) $(142,850) $(157,830)
======== ======== ======= ======== ======== ========= ========= ========= ========= =========
OTHER OPERATING
DATA:
Adjusted EBITDA
(4)............. $ 11,315 $ 16,040 $ 4,815 $ 6,744 $ 17,969 $ 47,186 $ 105,801 $ 130,332 $ 96,431 $ 105,533
Adjusted EBITDA
margin (5)...... 27% 28% 28% 29% 28% 33% 35% 35% 35% 37%
Capital
expenditures,
excluding
acquisitions.... $ 20,853 $ 25,657 $ 7,486 $ 15,279 $ 33,450 $ 60,468 $ 165,206 $ 102,769 $ 74,762 $ 85,785
Cash flows
provided by
operating
activities...... $ 8,721 $ 14,781 $ 5,306 $ 4,680 $ 14,155 $ 14,749 $ 37,802 $ 63,590 $ 44,551 $ 91,415
Cash flows used
in investing
activities...... $(30,998) $(28,982) $(7,486) $(34,364) $(55,860) $(192,549) $(490,626) $(102,769) $ (74,672) $ (85,785)
Cash flows
provided by
(used in)
financing
activities...... $ 11,268 $ 14,636 $11,290 $ 26,108 $ 29,454 $ 179,092 $ 452,678 $ 39,010 $ 31,645 $ (2,387)
Pagers in service
at end of
period.......... 254,000 410,000 288,000 538,000 538,000 2,006,000 3,295,000 3,890,000 3,781,000 4,211,000
</TABLE>
- -------
(footnotes on following page)
30
<PAGE>
<TABLE>
<CAPTION>
AS OF
AUGUST 31, (1) AS OF DECEMBER 31, AS OF
--------------- --------------------------------------- SEPTEMBER 30,
1993 1994 1994 1995 1996 1997 1998
------- ------- -------- -------- ---------- ---------- -------------
(DOLLARS IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Current assets.......... $ 4,690 $ 6,751 $ 8,483 $ 33,671 $ 43,611 $ 51,025 $ 55,815
Total assets............ 62,209 76,255 117,858 785,376 1,146,756 1,020,720 942,366
Long-term debt, less
current maturities..... 49,748 67,328 93,420 457,044 918,150 968,896 992,790
Redeemable preferred
stock.................. -- -- -- 3,376 3,712 -- --
Stockholders' equity
(deficit).............. 1,563 (3,304) 9,368 246,884 147,851 (33,255) (165,423)
</TABLE>
- --------
(1) On October 17, 1994, Arch announced that it was changing its fiscal year
end from August 31 to December 31. Arch was required to file a transition
report on Form 10-K with audited financial statements for the period
September 1, 1994 through December 31, 1994 and has elected to include
herein, for comparative purposes, unaudited financial statements for the
periods September 1, 1993 through December 31, 1993 and January 1, 1994
through December 31, 1994.
(2) Represents Arch's share of losses of the Benbow PCS Ventures, Inc. since
Arch's acquisition of Westlink Holdings, Inc. in May 1996. See "Business--
Arch Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources".
(3) Reflects extraordinary charge resulting from prepayment of indebtedness.
See "Business--Arch Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations".
(4) EBITDA, as determined by Arch, does not reflect restructuring charge,
equity in loss of affiliate, income tax benefit, interest and non-
operating expenses, net and extraordinary items; consequently EBITDA may
not necessarily be comparable to similarly titled data of other paging
companies. EBITDA is commonly used by analysts and investors as a
principal measure of financial performance in the paging industry. EBITDA
is also one of the primary financial measures used to calculate whether
Arch and its subsidiaries are in compliance with covenants under their
respective indebtedness which covenants, among other things, limit the
ability of Arch and its subsidiaries to: incur additional indebtedness,
advance funds to Benbow, pay dividends, grant liens on its assets, merge,
sell or acquire assets, repurchase or redeem capital stock, incur capital
expenditures and prepay certain indebtedness. EBITDA is also one of the
financial measures used by analysts to value the Company. Therefore Arch
management believes that the presentation of EBITDA provides relevant
information to investors. EBITDA should not be construed as an alternative
to operating income or cash flows from operating activities as determined
in accordance with GAAP or as a measure of liquidity. Amounts reflected as
EBITDA or Arch Adjusted EBITDA are not necessarily available for
discretionary use as a result of, among other things, restrictions imposed
by the terms of existing indebtedness or limitations imposed by applicable
law upon the payment of dividends or distributions. See "Business--Arch
Management's Discussion and Analysis of Financial Condition and Results of
Operation".
The following table reconciles net income to the presentation of Arch
Adjusted EBITDA:
<TABLE>
<CAPTION>
FOUR MONTHS
YEAR ENDED ENDED NINE MONTHS ENDED
AUGUST 31, DECEMBER 31, YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------- ---------------- --------------------------------------- --------------------
1993 1994 1993 1994 1994 1995 1996 1997 1997 1998
------- ------- ------- ------- ------- -------- --------- --------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net income (loss)... $(5,725) $(5,069) $(1,866) $(3,259) $(6,462) $(36,602) $(114,662) $(181,874) $(142,850) $(157,830)
Interest and non-
operating expenses,
net................ 2,861 4,112 1,132 1,993 4,973 22,522 75,927 97,159 72,436 78,334
Income tax benefit.. -- -- -- -- -- (4,600) (51,207) (21,172) (15,900) --
Depreciation and
amortization....... 13,764 16,997 5,549 6,873 18,321 60,205 191,871 232,347 179,917 164,990
Restructuring
charge............. -- -- -- -- -- -- -- -- -- 16,100
Equity in loss of
affiliate.......... -- -- -- -- -- 3,977 1,968 3,872 2,828 2,219
Extraordinary Item.. 415 -- -- 1,137 1,137 1,684 1,904 -- -- 1,720
------- ------- ------- ------- ------- -------- --------- --------- --------- ---------
Adjusted EBITDA..... $11,315 $16,040 $ 4,815 $ 6,744 $17,969 $ 47,186 $ 105,801 $ 130,332 $ 96,431 $ 105,533
======= ======= ======= ======= ======= ======== ========= ========= ========= =========
</TABLE>
(5) Calculated by dividing Arch Adjusted EBITDA by total revenues less cost of
products sold. EBITDA margin is a measure commonly used in the paging
industry to evaluate a company's EBITDA relative to total revenues less
cost of products sold as an indicator of the efficiency of a company's
operating structure.
31
<PAGE>
SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OPERATING DATA--MOBILEMEDIA
The following table sets forth selected historical consolidated financial
and operating data of MobileMedia and Metromedia Paging Services
("Predecessor") for each of the five years ended December 31, 1997 and the
nine months ended September 30, 1997 and 1998. The historical financial and
operating data presented under consolidated statements of operations data and
consolidated balance sheet data for each of the five years ended December 31,
1997 have been derived from MobileMedia's and the Predecessor's audited
consolidated financial statements and notes thereto. The selected financial
and operating data as of September 30, 1998 and for the nine months ended
September 30, 1997 and 1998 have been derived from MobileMedia's unaudited
consolidated financial statements and notes thereto. The following
consolidated financial information should be read in conjunction with
"Business--MobileMedia Management's Discussion and Analysis of Financial
Condition and Results of Operations" and MobileMedia's Consolidated Financial
Statements and Notes thereto included elsewhere in this Proxy
Statement/Prospectus.
<TABLE>
<CAPTION>
(UNAUDITED)
ELEVEN NINE MONTHS
MONTHS ONE MONTH ENDED
ENDED ENDED YEAR ENDED DECEMBER 31, SEPTEMBER 30,(9)
NOVEMBER 30, DECEMBER 31, ----------------------------------------------- -------------------------
1993 1993(1) 1994 1995(2) 1996(3) 1997 1997 1998
------------ ------------ ---------- ---------- ----------- ---------- ---------- -------------
PREDECESSOR MOBILEMEDIA
------------ ---------------------------------------------------------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENTS OF
OPERATIONS DATA:
Total revenues..... $ 173,761 $ 15,058 $ 203,149 $ 252,996 $ 640,710 $ 527,392 $ 407,157 $ 340,369
Cost of products
sold.............. (20,170) (522) (18,705) (26,885) (72,595) (35,843) (27,524) (16,531)
---------- ---------- ---------- ---------- ----------- ---------- ---------- ----------
153,591 14,536 184,444 226,111 568,115 491,549 379,633 323,838
Services, rents and
maintenance,
selling, and
general and
administrative
expenses(4)....... 123,727 11,125 136,672 164,037 459,474 388,476 309,299 230,737
Impairment of long-
lived assets(5)... -- -- -- -- 792,478 -- -- --
Restructuring
costs(6).......... -- -- -- -- 4,256 19,811 15,577 13,831
Depreciation and
amortization...... 47,919 4,880 67,651 71,408 348,698 140,238 104,368 88,312
Amortization of
deferred gain on
tower sale........ -- -- -- -- -- -- -- (389)
Parent company cost
allocations....... 7,267 -- -- -- -- -- -- --
---------- ---------- ---------- ---------- ----------- ---------- ---------- ----------
Operating loss..... (25,322) (1,469) (19,879) (9,334) (1,036,791) (56,976) (49,611) (8,653)
Other income
(expense)
Interest expense... (4,914) (1,461) (18,237) (31,745) (92,663) (67,611) (51,531) (42,449)
(Loss) gain on sale
of assets......... -- -- 1,049 -- 68 3 3 94,085
Other.............. (405) -- -- -- -- -- -- --
---------- ---------- ---------- ---------- ----------- ---------- ---------- ----------
Total other income
(expense)........ (5,319) (1,461) (17,188) (31,745) (92,595) (67,608) (51,528) (51,636)
---------- ---------- ---------- ---------- ----------- ---------- ---------- ----------
Income (loss)
before income tax
provision
(benefit)......... (30,641) (2,930) (37,067) (41,079) (1,129,386) (124,584) (101,139) 42,983
Income tax benefit
(provision)....... 7,328 -- -- -- 69,442 -- -- (678)
---------- ---------- ---------- ---------- ----------- ---------- ---------- ----------
Net income (loss).. $ (23,313) $ (2,930) $ (37,067) $ (41,079) $(1,059,944) $ (124,584) $ (101,139) $ 42,305
========== ========== ========== ========== =========== ========== ========== ==========
OTHER DATA
Adjusted EBITDA(7). $ 22,597 $ 3,411 $ 47,772 $ 62,074 $ 108,641 $ 103,073 $ 70,334 $ 93,101
Adjusted EBITDA
margin(8)......... 14.7% 23.5% 25.9% 27.5% 19.1% 21.0% 18.5% 28.7%
Units in service
(at end of
period)........... 1,196,079 1,205,233 1,447,352 2,369,101 4,424,107 3,440,342 3,681,069 3,182,207
Capital
expenditures...... $ 31,480 $ 3,250 $ 65,574 $ 86,163 $ 161,861 $ 40,556 $ 32,321 $ 32,394
Cash flows provided
by (used in)
operating
activities........ $ 27,737 $ 8,381 $ 53,781 $ 43,849 $ 57,194 $ 14,920 $ (2,847) $ 41,585
Cash flows provided
by (used in)
investing
activities........ $ (31,773) $ (320,753) $ (50,878) $ (312,698) $(1,028,321) $ (40,556) $ (32,321) $ 137,309
Cash flows provided
by (used in)
financing
activities........ $ 4,036 $ 314,700 -- $ 671,794 $ 586,111 $ 13,396 $ 20,396 $ (180,000)
<CAPTION>
AS OF DECEMBER 31,
------------------------------------------------------------
AS OF
SEPTEMBER 30,
1993 1994 1995 1996 1997 1998
------------ ---------- ---------- ----------- ---------- -------------
(DOLLARS IN THOUSANDS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED
BALANCE SHEET DATA
Total assets....... $ 356,744 $ 353,703 $1,128,546 $ 790,230 $ 655,134 $ 577,306
Debt............... 181,992 195,677 476,156 1,074,196 1,075,681 905,681
Total stockholders'
equity (deficit).. 138,567 101,500 578,753 (468,391) (589,579) (547,274)
</TABLE>
- -------
(footnotes on following page)
32
<PAGE>
- --------
(1) Parent completed the acquisition of Predecessor on November 30, 1993 for
a purchase price of $308.1 million.
(2) MobileMedia completed its acquisition of the paging and wireless
messaging business of Dial Page on August 31, 1995 for a purchase price
of $187.4 million. The consolidated statement of operations data includes
Dial Page's results of operations from that date. (See Note 3 to
MobileMedia's Consolidated Financial Statements and "Business--
MobileMedia--Events Leading Up to MobileMedia's Bankruptcy Filings".)
(3) MobileMedia completed the MobileComm Acquisition on January 4, 1996 for a
purchase price of $928.7 million. The consolidated statement of
operations data includes MobileComm results of operations from that date.
(See Note 3 to MobileMedia's Consolidated Financial Statements and
"Business--MobileMedia--Events Leading Up to MobileMedia's Bankruptcy
Filings").
(4) Includes non-recurring adjustments to record executive separation
expenses of $2.5 million in 1994 and $0.7 million in 1995.
(5) Includes non-recurring adjustment to record, effective December 31, 1996,
a $792.5 million write-down of intangible assets based upon MobileMedia's
determination that an impairment of long-lived assets existed pursuant to
Statement of Financial Accounting Standards No. 121 "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of" (See Note 2 to MobileMedia's Consolidated Financial Statements).
(6) Includes non-recurring adjustments to record restructuring costs related
to MobileMedia's bankruptcy filing on January 30, 1997.
(7) MobileMedia Adjusted EBITDA represents earnings before other income
(expense), taxes, depreciation, amortization, amortization of deferred
gain on tower sale and restructuring costs. MobileMedia Adjusted EBITDA
for the Predecessor includes parent company cost allocations. EBITDA is a
financial measure commonly used in MobileMedia's industry and should not
be construed as an alternative to operating income (as determined in
accordance with GAAP), as an alternative to cash flows from operating
activities (as determined in accordance with GAAP) or as a measure of
liquidity. MobileMedia Adjusted EBITDA is, however, the primary financial
measure by which MobileMedia's covenants are calculated under the
agreements governing MobileMedia's indebtedness. EBITDA is also one of
the financial measures used by analysts to value the Company. MobileMedia
Adjusted EBITDA in 1996 excludes the impact of the $792.5 million
writedown of intangible assets. MobileMedia Adjusted EBITDA may not
necessarily be comparable to similarly titled data of other paging
companies. The following table reconciles net income to the presentation
of MobileMedia Adjusted EBITDA.
<TABLE>
<CAPTION>
ONE MONTH
ENDED NINE MONTHS ENDED
ELEVEN MONTHS ENDED DECEMBER 31, YEAR ENDED DECEMBER 31, SEPTEMBER 30,
NOVEMBER, 30 ------------ ------------------------------------------ ------------------
1993 1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ---- ----
PREDECESSOR MOBILEMEDIA
------------------- ---------------------------------------------------------------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net income (loss)...... $(23,313) $(2,930) $(37,067) $(41,079) $(1,059,944) $(124,584) $(101,139) $42,305
Interest expense....... 4,914 1,461 18,237 31,745 92,663 67,611 51,531 42,449
Income tax provision
(benefit).. (7,328) -- -- -- (69,442) -- -- 678
Depreciation and
amortization.......... 47,919 4,880 67,651 71,408 348,698 140,238 104,368 88,312
Amortization of
deferred gain on tower
sale.................. -- -- -- -- -- -- -- (389)
Restructuring costs.... -- -- -- -- 4,256 19,811 15,577 13,831
Impairment of long
lived assets.......... -- -- -- -- 792,478 -- -- --
Gain/loss on sale of
assets................ -- -- (1,049) -- (68) (3) (3) (94,085)
Other income/expense... 405 -- -- -- -- -- -- --
-------- ------- -------- -------- ----------- --------- --------- -------
Adjusted EBITDA........ $ 22,597 $ 3,411 $ 47,772 $ 62,074 $ 108,641 $ 103,073 $ 70,334 $93,101
======== ======= ======== ======== =========== ========= ========= =======
</TABLE>
(8) Calculated by dividing MobileMedia Adjusted EBITDA by total revenues less
cost of products sold. EBITDA margin is a measure commonly used in the
paging industry to evaluate a company's EBITDA relative to total revenues
less cost of products sold as an indicator of the efficiency of a
company's operating structure. MobileMedia Adjusted EBITDA margin in 1996
excludes the impact of the $792.5 million writedown of intangible assets.
(9) The interim financial information as of September 30, 1998 and for the
nine months ended September 30, 1997 and 1998 contained herein is
unaudited but, in the opinion of MobileMedia management, includes all
adjustments of a normal recurring nature that are necessary for a fair
presentation of the financial position, results of operations, and cash
flows for the periods presented. Results of operations for the interim
periods presented are not necessarily indicative of results of operations
for the entire year or any future period.
33
<PAGE>
UNAUDITED SELECTED PRO FORMA CONSOLIDATED FINANCIAL DATA
The following selected pro forma financial information gives effect to the
Merger and the Related Transactions as if such transactions had been
consummated on September 30, 1998 in the case of the balance sheet and on
January 1, 1997 in the case of the statement of operations data and the other
operating data assuming 122,845,000 shares of Arch Combined Common Stock were
issued in the Rights Offering and in the Creditor Stock Pool having an
aggregate market value of $245.7 million at a price of $2.00 per share and
that none of the Arch Stockholder Rights were exercised. As used herein, the
term "Related Transactions" means (i) the completion of the Rights Offering
and the issuance and sale of 108,500,000 shares of Common Stock pursuant
thereto, resulting in proceeds to Arch of $217.0 million, (ii) the issuance
and sale of $200.0 million aggregate principal amount of Planned ACI Notes
(assumed for purposes hereof to bear interest at 13% per annum), (iii)
additional borrowings under the API Credit Facility of $122.0 million, (iv)
the issuance of 14,344,969 shares of Arch Common Stock and the distribution of
such shares from the Creditor Stock Pool in accordance with the Amended Plan,
and (v) the payment by Arch of $479.0 million in cash and the distribution of
such funds in accordance with the Amended Plan. The following selected pro
forma financial information should be read in conjunction with the unaudited
pro forma condensed consolidated financial statements and the notes thereto
appearing elsewhere herein. The financial impact of expected operational cost
synergies resulting from the Merger are excluded from this presentation. See
"The Combined Company".
The pro forma information is presented for illustrative purposes only and is
not necessarily indicative of the operating results or financial position that
would have occurred if the Merger and the Related Transactions had been
consummated as of the above-referenced dates or of the future operating
results or financial position of Arch following the Merger and the Related
Transactions.
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS
DECEMBER 31, ENDED
1997 SEPTEMBER 30, 1998
------------ ------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
STATEMENT OF OPERATIONS DATA:
Service, rental and maintenance revenues....... $ 833,785 $ 591,487
Product sales.................................. 81,115 52,178
--------- ---------
Total revenues................................. 914,900 643,665
Cost of products sold.......................... (65,001) (38,394)
--------- ---------
849,899 605,271
Operating expenses:
Service rental and maintenance................ 220,636 145,688
Selling....................................... 121,018 82,750
General and administrative.................... 285,640 185,910
Depreciation and amortization................. 398,606 272,818
Restructuring charge.......................... -- 16,100
Bankruptcy and related expense................ 19,811 13,831
--------- ---------
Operating income (loss)........................ (195,812) (111,826)
Interest and non-operating expenses, net....... (138,618) (14,661)
--------- ---------
Income (loss) before income tax benefit and ex-
traordinary item.............................. (334,430) (126,487)
Income tax benefit (provision)................. 21,172 (678)
--------- ---------
Income (loss) before extraordinary item........ $(313,258) $(127,165)
========= =========
OTHER OPERATING DATA:
Capital expenditures, excluding acquisitions... 143,325 118,179
Pagers in service at end of period(1).......... 7,130,000 7,143,000
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30,
1998
-------------
<S> <C>
BALANCE SHEET DATA:
Current assets.................................................... $ 116,713
Total assets...................................................... 1,601,971
Long-term debt, less current maturities........................... 1,314,790
Stockholders' equity.............................................. 80,267
</TABLE>
- --------
(1) Consolidated pagers in service is calculated by adding the Arch and
MobileMedia amounts less an elimination for intercompany pagers in
service.
34
<PAGE>
COMPARATIVE PER SHARE DATA
The following table sets forth, for the periods indicated, selected
historical per share data of Arch and MobileMedia and the corresponding pro
forma equivalent per share amounts after giving effect to the Amended Plan and
the Merger. The pro forma information gives effect to the Merger accounted for
as a purchase, assuming that 122,845,000 shares of Arch Combined Common Stock
were issued and have an aggregate market value of $245.7 million at a price of
$2.00 per share. See "Risk Factors--Uncertainties Related to the Merger and
the Reorganization--Use of Pro Forma Assumptions". The data presented are
based upon the audited and unaudited historical financial statements and
related notes thereto of Arch and MobileMedia which are included elsewhere
herein, and the Unaudited Pro Forma Condensed Consolidated Financial
Statements which are included elsewhere herein. This information should be
read in conjunction with such historical and pro forma financial statements
and related notes thereto. The unaudited pro forma consolidated financial data
are not necessarily indicative of the results that would have occurred if the
Amended Plan and the Merger had been consummated as of the beginning of the
earliest period presented.
HISTORICAL AND PRO FORMA COMPARATIVE PER SHARE DATA
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS
DECEMBER 31, ENDED
1997 SEPTEMBER 30, 1998
------------ ------------------
<S> <C> <C>
Arch Historical:
Income (loss) before extraordinary item..... $(8.77) $(7.47)
Extraordinary item.......................... -- (0.08)
Net income (loss)........................... (8.77) (7.55)
Book value (1).............................. (1.59) (7.85)
MobileMedia Historical: (2)................... n/a n/a
Pro Forma Consolidated--Arch and MobileMedia
(3):
Income (loss) before extraordinary item..... (2.18) (0.88)
Extraordinary item.......................... -- (0.01)
Net income (loss)........................... (2.18) (0.89)
Book value (4).............................. 1.48 0.56
</TABLE>
- --------
(1) Historical book value per share is computed by dividing total
stockholders' equity (deficit) by the number of shares of Arch Common
Stock outstanding at the end of the period.
(2) The historical per share data for MMC is not presented since MMC is a
wholly owned subsidiary of Parent with a single share of common stock
issued and outstanding. In addition, all capital stock interests in Parent
will be extinguished under the Amended Plan without the payment of
consideration. Therefore historical per share data for MMC or the Parent
is not considered meaningful.
(3) Pro forma consolidated net income (loss) per share is computed by dividing
pro forma net income (loss) by the weighted average number of shares of
Arch Common Stock after giving effect to the issuance of Arch Common Stock
in the Merger, at an assumed market value of $2.00 per share, having an
aggregate market value of approximately $245.7 million.
(4) Pro forma consolidated book value per share is computed by dividing pro
forma consolidated stockholders' equity (deficit) by the number of shares
of Arch Common Stock outstanding after giving effect to the issuance of
Arch Common Stock in the Merger, at an assumed market value price of $2.00
per share, having an aggregate market value of approximately $245.7
million.
35
<PAGE>
MARKET PRICE INFORMATION AND DIVIDEND POLICY
Arch Common Stock is traded on the NNM under the symbol "APGR". Parent's
common stock is not currently listed on the NNM or any other stock exchange.
Arch Common Stock began trading on the NNM in January 1992. The following
table sets forth for the periods indicated the high and low reported sale
prices per share of Arch Common Stock on the NNM:
<TABLE>
<CAPTION>
HIGH LOW
------- --------
<S> <C> <C>
FISCAL 1996
First Quarter.......................................... $27.125 $19.125
Second Quarter......................................... $27.125 $17.875
Third Quarter.......................................... $19.75 $11.50
Fourth Quarter......................................... $13.875 $ 8.25
FISCAL 1997
First Quarter.......................................... $10.00 $ 3.75
Second Quarter......................................... $ 8.375 $ 3.75
Third Quarter.......................................... $ 9.50 $ 5.875
Fourth Quarter......................................... $ 9.125 $ 4.125
FISCAL 1998
First Quarter.......................................... $ 6.125 $ 3.00
Second Quarter......................................... $ 6.938 $ 3.50
Third Quarter.......................................... $ 5.000 $ 1.6875
Fourth Quarter (through December 14, 1998)............. $ 1.75 $ 0.6875
</TABLE>
On August 19, 1998, Arch publicly announced it was engaged in negotiations
to acquire Parent and, on August 20, 1998, Arch announced it had entered into
a merger agreement with Parent and MMC. On September 4, 1998 Arch announced
that it had modified the previously announced merger agreement. On December 2,
1998 Arch announced that it had entered into further modifications resulting
in the Merger Agreement. The high and low reported sale prices per share of
Arch Common Stock on the NNM were $4.00 and $3.375, respectively, on August
18, 1998 and were $4.75 and $3.8125, respectively, on August 19, 1998. Based
upon the market value per share of $2.00 used to prepare the pro forma
condensed consolidated financial statements, the shares of Arch Common Stock
to be issued in connection with the Merger would have an aggregate market
value of $245.7 million.
On the Record Date, there were 21,067,110 outstanding shares of Arch Common
Stock held by 171 stockholders of record and 250,000 shares of Series C
Preferred Stock held by 10 stockholders of record. The number of record
holders may not be representative of the number of beneficial holders because
many shares are held by depositaries, brokers or other nominees.
Neither Arch nor Parent has ever declared or paid any cash dividends on its
capital stock. Arch anticipates that all of its earnings in the foreseeable
future will be used to finance the continued growth and development of its
business and has no current intention to pay cash dividends on Arch Common
Stock. Arch's future dividend policy will depend on its earnings, capital
requirements and financial condition, requirements of the financing agreements
to which it is then a party and other factors considered relevant by the Arch
Board. The API Credit Facility prohibits declaration or payment of cash
dividends to Arch stockholders without the written consent of a majority of
the lenders during the term of the credit agreement and until all obligations
under the credit agreement have been met. The Arch Indentures only permit the
declaration or payment of cash dividends subject to certain leverage and cash
flow requirements (which Arch does not currently meet). In addition, the terms
of the Series C Preferred Stock generally prohibit the payment of cash
dividends on Arch Common Stock unless all accrued dividends due with respect
to the Series C Preferred Stock have been paid in full. See "Description of
Arch Securities" and "Description of Certain Arch Indebtedness".
36
<PAGE>
STOCKHOLDINGS BEFORE AND AFTER THE MERGER
The following table sets forth certain information with respect to the
ownership of the Arch Combined Common Stock, including shares issuable upon
exercise of the Arch Participation Warrants after the Merger.
<TABLE>
<CAPTION>
PERCENTAGE OWNERSHIP OF ARCH
COMMON STOCK OUTSTANDING(1)
--------------------------------------------------------
ASSUMING NO EXERCISE ASSUMING EXERCISE OF ALL
OF ANY ARCH STOCKHOLDER RIGHTS ARCH STOCKHOLDER RIGHTS
OR ARCH AND ALL ARCH
PARTICIPATION WARRANTS PARTICIPATION WARRANTS
------------------------------- ------------------------
<S> <C> <C>
Unsecured Creditors of
MobileMedia(2)......... 82.7% 64.2%
Stockholders of Arch
Prior to The Merger.... 17.3 35.8
----- -----
Total................. 100.0% 100.0%
===== =====
</TABLE>
- --------
(1) Assuming in all cases the conversion of all convertible Arch securities
and the full exercise of the Rights by the initial recipient thereof.
(2) Includes Standby Purchasers. Depending on the amounts of Arch Common Stock
which the other Unsecured Creditors elect to purchase, the Standby
Purchasers might hold, in the aggregate, a majority of the outstanding
shares of Arch Combined Common Stock. However, the Standby Purchasers
would not hold, in the aggregate, shares representing more than 49.0% of
securities of Arch generally entitled to vote in the election of directors
or 49.0% of the total voting power of the outstanding securities of Arch
at such time, because a portion of their holdings would be Class B Common
Stock. See "Description of Arch Securities--Class B Common Stock."
The Standby Purchasers have agreed to purchase shares of Arch Combined
Common Stock in connection with the Merger to the extent that Rights are not
otherwise exercised by the Unsecured Creditors, other than the Standby
Purchasers, subject to certain reductions if Arch Stockholder Rights are
exercised prior to the Effective Time. Depending on the amounts of Arch Common
Stock which other Unsecured Creditors elect to purchase, the Standby
Purchasers might hold, in the aggregate, a majority of the shares of
outstanding Arch Combined Common Stock. However, the Standby Purchasers will
not hold, in the aggregate, shares representing more than 49.0% of securities
of Arch generally entitled to vote in the election of directors or 49.0% of
the total voting power of the outstanding securities of Arch at such time,
because a portion of their holdings would be Class B Common Stock.
37
<PAGE>
THE SPECIAL MEETING
GENERAL
This Proxy Statement/Prospectus is being furnished to holders of Arch Common
Stock and Series C Preferred Stock in connection with the solicitation of
proxies by the Arch Board for use at the Special Meeting and any adjournments
or postponements thereof. Each copy of this Proxy Statement/Prospectus mailed
to holders of Arch Common Stock or Series C Preferred Stock is accompanied by
a form of proxy for use at the Special Meeting.
This Proxy Statement/Prospectus and the accompanying form of proxy are first
being mailed to stockholders of Arch on or about December , 1998.
ARCH STOCKHOLDERS ARE REQUESTED TO COMPLETE, SIGN AND DATE THE ACCOMPANYING
PROXY CARD AND RETURN IT PROMPTLY TO ARCH IN THE ENCLOSED, POSTAGE-PAID
ENVELOPE.
PURPOSE OF THE SPECIAL MEETING
At the Special Meeting, the holders of Arch Common Stock and Series C
Preferred Stock eligible to vote will be asked the following:
1. To consider and vote upon the MobileMedia Proposal;
2. To consider and vote upon the Charter Amendment Proposal;
3. To approve the Stock Split Proposal;
4. To approve the Option Plan Proposal;
5. To approve the Stock Purchase Plan Proposal; and
to transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof.
THE APPROVAL OF EACH OF THE MOBILEMEDIA PROPOSAL AND THE CHARTER AMENDMENT
PROPOSAL IS CONDITIONED UPON APPROVAL OF BOTH SUCH PROPOSALS. ACCORDINGLY,
A VOTE AGAINST EITHER OF THESE PROPOSALS WILL HAVE THE SAME EFFECT AS A
VOTE AGAINST BOTH SUCH PROPOSALS.
ARCH BOARD OF DIRECTORS RECOMMENDATION
The Arch Board has approved the Merger Agreement and the transactions
contemplated thereby and unanimously recommends a vote FOR the MobileMedia
Proposal, the Charter Amendment Proposal, the Stock Split Proposal and the
Option Plan Proposal.
DATE, TIME AND PLACE
The Special Meeting is scheduled to be held on January , 1999 at 10:00
a.m., local time, at the offices of Hale and Dorr LLP, 60 State Street,
Boston, Massachusetts 02109.
RECORD DATE; SHARES OUTSTANDING
The Arch Board has fixed the close of business on Friday, December 11, 1998
as the Record Date for the determination of Arch stockholders entitled to
notice of and to vote at the Special Meeting and at any adjournments or
postponements thereof. On the Record Date, there were 21,067,110 shares of
Arch Common Stock outstanding held by 171 stockholders of record and 250,000
shares of Series C Preferred Stock outstanding, held by 10 stockholders of
record in the aggregate.
38
<PAGE>
VOTING AT THE SPECIAL MEETING
At the Special Meeting, holders of shares of Arch Common Stock and holders of
Series C Preferred Stock will vote together as a single class. Each share of
Arch Common Stock is entitled to one vote on all matters presented at the
Special Meeting, and each share of Series C Preferred Stock is currently
entitled to 18.5 votes on all such matters.
The presence, either in person or by proxy, of the holders of a majority of
the shares of Arch Voting Stock issued and outstanding and entitled to vote at
the Special Meeting is necessary to constitute a quorum at the Special Meeting.
Assuming a quorum is present, the affirmative vote of shares of Arch Voting
Stock representing a majority of the votes entitled to be cast in respect of
the shares of Arch Voting Stock present or represented at the Special Meeting
is required to approve each of the matters to be considered at the Special
Meeting, except that the affirmative vote of shares of Arch Voting Stock
representing a majority of all votes entitled to be cast is necessary to
approve the Charter Amendment Proposal and the Stock Split Proposal. Each share
of Arch Common Stock is entitled to one vote on all matters presented at the
Special Meeting, and each share of Series C Preferred Stock is currently
entitled to 18.5 votes per share on all matters presented at the Special
Meeting. See "Description of Arch Capital Stock--Arch Series C Preferred
Stock". The approval of the MobileMedia Proposal is required by the rules of
the NASD governing corporations with securities approved for quotation on the
NNM.
If a stockholder attends the Special Meeting, such stockholder may vote by
ballot. However, many of Arch's stockholders may be unable to attend the
Special Meeting. Therefore, the Arch Board is soliciting proxies so that each
holder of Arch Common Stock and Series C Preferred Stock on the Record Date has
the opportunity to vote on the proposals to be considered at the Special
Meeting. When a proxy is returned properly signed and dated, the shares
represented thereby will be voted in accordance with the instructions on the
proxy card. If an Arch stockholder does not return a signed proxy card, such
stockholder's shares will not be voted. Stockholders are urged to mark the
boxes on the proxy card to indicate how their shares are to be voted. If a
holder of Arch Common Stock or Series C Preferred Stock returns a signed proxy
card, but does not indicate how such stockholder's shares are to be voted, the
shares represented by the proxy will be voted FOR approval of the MobileMedia
Proposal, the Charter Amendment Proposal, the Stock Split Proposal and the
Option Plan Proposal. The proxy also confers discretionary authority on the
persons appointed by the Arch Board and named on the proxy to vote the shares
represented thereby on any other matter that may properly arise at the Special
Meeting in accordance with the judgment of such persons.
The Special Meeting may be adjourned, and additional proxies solicited, if
the vote necessary to approve a proposal has not been obtained. Any adjournment
of the Special Meeting will require the affirmative vote of the holders of at
least a majority of the voting power of the shares represented, whether in
person or by proxy, of the Special Meeting (regardless of whether these shares
constitute a quorum).
Any Arch stockholder who executes and returns a proxy card may revoke such
proxy at any time before it is voted by (i) notifying in writing the Secretary
of Arch at 1800 West Park Drive, Suite 250, Westborough, Massachusetts 01581,
(ii) executing a subsequent proxy or (iii) appearing in person and voting at
the Special Meeting. Attendance at the Special Meeting will not in and of
itself constitute revocation of a proxy.
As of the date of this Proxy Statement/Prospectus, the Arch Board does not
know of any other matters to be presented for action by Arch stockholders at
the Special Meeting. If, however, any other matters not now known are properly
brought before the Special Meeting, the persons appointed as the named proxies
will have discretion to vote or act thereon according to their best judgment.
SOLICITATION OF PROXIES
All expenses of Arch's solicitation of proxies, including the cost of
preparing and mailing this Proxy Statement/Prospectus, will be borne by Arch.
In addition to solicitation by use of the mails, proxies may be
39
<PAGE>
solicited by directors, officers and employees of Arch in person or by
telephone, telecopy, telegram or other means of communication. Such directors,
officers and employees soliciting proxies will not be additionally compensated,
but may be reimbursed for reasonable out-of-pocket expenses incurred in
connection with such solicitation. Arch has retained MacKenzie Partners, Inc.,
a proxy solicitation firm, for assistance in connection with the Special
Meeting at an estimated expense of approximately $10,000, plus reasonable out-
of-pocket expenses. Arrangements will also be made with custodians, nominees
and fiduciaries for forwarding of proxy solicitation materials to beneficial
owners of shares held of record by such custodians, nominees and fiduciaries,
and Arch will reimburse such persons for reasonable expenses incurred in
connection therewith.
EFFECT OF ABSTENTIONS AND "BROKER NON-VOTES"
At the Special Meeting, abstentions and "broker non-votes" will be counted
for purposes of determining the presence or absence of a quorum. In determining
whether the MobileMedia Proposal and the Option Plan Proposal have received the
requisite number of affirmative votes, abstentions and broker non-votes will
not be counted as votes in favor of such matters, and also will not be counted
as shares voting on such matters. Accordingly, abstentions and broker non-votes
will have no effect on the outcome of such votes. In determining whether the
Charter Amendment Proposal and the Stock Split Proposal have received the
requisite number of affirmative votes, abstentions and broker non-votes will
not be counted as votes in favor of such matter. Accordingly, abstentions and
broker non-votes will have the effect of a vote against the Charter Amendment
Proposal and the Stock Split Proposal.
APPRAISAL RIGHTS
Holders of Arch Common Stock and Series C Preferred Stock will not be
entitled to any appraisal rights in connection with the matters to be voted
upon at the Special Meeting. See "The MobileMedia Proposal--Appraisal Rights".
40
<PAGE>
ITEM 1 -- THE MOBILEMEDIA PROPOSAL
BACKGROUND OF THE MERGER
In furtherance of its strategic objective to strengthen its position as a
leading nationwide paging company, Arch has completed 33 acquisitions of other
paging companies since its inception in 1986. Senior management of Arch
regularly engages in discussions of potential acquisitions with third parties.
Prior to its bankruptcy proceeding, MobileMedia had also engaged in several
acquisitions of paging companies.
At various times during 1995 and 1996, the then Chief Executive Officer of
MobileMedia and C. Edward Baker, Jr., Arch's Chairman and Chief Executive
Officer, informally discussed opportunities for a possible business
combination involving the two companies. In December 1996, Arch executed a
non-disclosure agreement with MobileMedia, received confidential information
about MobileMedia's operations and began to explore on a more formal basis a
potential business combination with MobileMedia. In January 1997, Arch engaged
Bear Stearns as its financial advisor to explore a variety of strategic
consolidation opportunities, including the possibility of a business
combination involving MobileMedia. These discussions terminated prior to
MobileMedia filing for bankruptcy protection in January 1997 without Arch
making any formal proposal.
During the summer of 1997, MobileMedia, through The Blackstone Group, L.P.,
its financial advisor ("Blackstone"), solicited acquisition proposals from a
number of third parties, including Arch. During this process, Arch reviewed
various operational and financial information provided by MobileMedia, and
conducted a due diligence investigation with respect to MobileMedia's
business, including a meeting with MobileMedia's executives held at
Blackstone's offices on June 9, 1997. By letter dated September 24, 1997, Arch
made a preliminary proposal to acquire MobileMedia for $300 million of senior
notes, $200 million of preferred stock, and Arch Common Stock which would have
represented approximately 32% of the outstanding shares of Arch Common Stock
on a pro forma basis following such issuance. Bear Stearns, on behalf of Arch,
and Blackstone, on behalf of MobileMedia, continued to negotiate possible
changes or enhancements to Arch's preliminary proposal through December 1997.
In October 1997, the Chairman--Restructuring of MobileMedia met with the Chief
Executive Officer of Arch to discuss a possible business combination. In
December 1997, Arch was informed that MobileMedia had determined to pursue a
different strategy and formal discussions between Arch and MobileMedia
concerning a potential business combination were terminated.
Thereafter, certain unsecured creditors of MobileMedia engaged in informal
discussions with Bear Stearns about a potential business combination between
MobileMedia and Arch. These discussions focused upon the amount of
indebtedness Arch would be willing to incur, as well as the type and amount of
equity securities that Arch would be willing to issue, in connection with such
a transaction.
Following the filing of the original plan of reorganization by MobileMedia
on January 27, 1998 providing for the continued operation of MobileMedia as a
stand-alone entity (the "Original Plan"), Bear Stearns had discussions with
Blackstone and Houlihan, Lokey, Howard & Zukin ("HLH&Z"), the financial
advisor to the Unsecured Creditors Committee. As a result of such discussions,
Arch agreed to make an acquisition proposal, subject to the support of the
Unsecured Creditors Committee.
At a March 4, 1998 meeting of the Arch Board, Arch management and Bear
Stearns made presentations concerning the status of negotiations with
MobileMedia, and the directors authorized submission of an acquisition
proposal.
On March 17, 1998, Arch, the Unsecured Creditors Committee, W.R. Huff and
the Northwestern Mutual Life Insurance Company executed a term sheet relating
to an acquisition of MobileMedia by Arch for consideration consisting of
$300.0 million in cash and/or senior notes (at Arch's election), the
assumption of up to $30.0 million in administrative claims and liabilities
under the DIP Credit Agreement, shares of Arch Common Stock equivalent to 70%
of the outstanding common stock of the Combined Company on a pro forma basis,
and warrants to purchase Arch Common Stock equivalent to 3.5% of the fully
diluted equity interest in the Combined Company (concurrent with the issuance
of identical warrants to existing Arch stockholders for the purchase of
41
<PAGE>
8.5% of the fully diluted equity interest in the Combined Company). This
proposal was subject to a number of conditions, including the satisfactory
completion of due diligence, the negotiation of definitive agreements and the
consent of Arch's lenders. Pursuant to the term sheet, for a period of 30 days
Arch and the Unsecured Creditors Committee each agreed to use its best efforts
to accomplish the proposed transaction, and each of Arch, W.R. Huff,
Northwestern Mutual and the Unsecured Creditors Committee (subject to its
fiduciary duties) agreed not to pursue any alternative proposal.
By letter dated March 17, 1998 to Parent and Blackstone, Arch proposed an
acquisition of MobileMedia on the terms set forth in the term sheet executed by
Arch, the Unsecured Creditors Committee, W.R. Huff and Northwestern Mutual.
On March 30, 1998, Mr. Baker and John B. Saynor, Executive Vice President of
Arch, together with Arch's financial and legal advisors, met with certain
members of the executive management of MobileMedia, members of the Unsecured
Creditors Committee, and certain secured creditors of MobileMedia, and their
respective financial and legal advisors, to discuss the March 17, 1998 Arch
proposal. Following this meeting, it was agreed that each of Arch and
MobileMedia would conduct due diligence on the other's operations, primarily to
identify and quantify potential operational cost synergies that Arch indicated
in its proposal would likely result from a business combination. Over the next
several weeks, executives of each of Arch and MobileMedia exchanged information
and met on a number of occasions to review business synergies and operational
and technical integration issues. In addition, Arch's financial advisor
continued negotiations with the financial advisors to MobileMedia, the secured
creditors and the Unsecured Creditors Committee, and their respective legal
advisors commenced due diligence reviews.
On April 17, 1998, the financial advisors for the secured creditors and the
Unsecured Creditors Committee met with the senior management of Arch and
MobileMedia, together with their respective financial advisors, to review
Arch's and MobileMedia's estimated operational cost synergies believed likely
to result from a combination of the businesses by each respective senior
management team. By letter dated April 24, 1998, Arch informed MobileMedia that
it had substantially completed its business due diligence, confirmed the terms
of its proposal and indicated it was prepared to negotiate expeditiously the
requisite legal documentation to proceed with the acquisition. On April 24,
1998, Arch's counsel forwarded to MobileMedia's counsel a proposed merger
agreement.
From April 17, 1998 through June 12, 1998, Arch and Bear Stearns held ongoing
discussions with MobileMedia, Blackstone, various secured creditors, the
Unsecured Creditors Committee and their financial advisors concerning Arch's
acquisition proposal. Major issues included the form of the proposed
consideration, since the secured creditors were seeking a cash payment for
their claims, and the appropriate valuation of the Arch securities proposed to
be issued. The Arch Board again reviewed the status of negotiations among Arch,
MobileMedia and the Unsecured Creditors Committee at a meeting held on May 19,
1998. On May 20, 1998, Arch management and its financial advisor made a
presentation to a group of MobileMedia's unsecured creditors, including the
Standby Purchasers, and HLH&Z, about Arch's due diligence and the merits of the
business combination. Further discussions followed and, on June 12, 1998, the
Unsecured Creditors Committee sent Arch and MobileMedia a draft term sheet
providing for a cash payment of the secured creditors' pre-petition claims of
$649.0 million. The term sheet contemplated that the cash payment to the
secured creditors would be funded by $170.0 million in proceeds from the
MobileMedia Tower Site Sale, $217.0 million in proceeds from the sale of Arch
equity securities to certain Unsecured Creditors, and borrowings incurred by
Arch estimated to be $262.0 million. The term sheet also contemplated that the
Unsecured Creditors would receive in consideration for their MobileMedia claims
and their $217.0 million equity investment, shares of Arch Common Stock
equivalent to 67.05% of the outstanding common stock of the Combined Company on
a pro forma basis, and warrants to purchase Arch Common Stock equivalent to
5.0% of the fully diluted equity interest in the Combined Company (concurrent
with the issuance of identical warrants to existing Arch stockholders for the
purchase of 7.0% of the fully diluted equity interest in the Combined Company).
Following further discussions, on July 2, 1998 the Unsecured Creditors
Committee circulated a revised term sheet providing for the Rights Offering to
the Unsecured Creditors with a subscription price between $5.00 and $8.50 per
share (based upon a trading period
42
<PAGE>
prior to approval of the disclosure statement related to the plan of
reorganization), with the Standby Purchasers agreeing to subscribe for and
exercise their pro rata portion of the Rights as well as any Rights not
exercised by the other Unsecured Creditors.
On July 7, 1998 counsel to MobileMedia circulated a revised form of merger
agreement reflecting the July 2, 1998 term sheet. On July 14, 1998, senior
managements of Arch and MobileMedia, their respective financial advisors and
counsel and the financial advisor and counsel to the Unsecured Creditors
Committee met to discuss the proposed merger agreement. The major issues
discussed included the circumstances under which breakup fees would be payable
by each party and the size of such fees, the conditions to closing, the
liabilities and administrative expenses to be assumed by Arch following the
merger and the number of directors to be added to the Arch Board. At an Arch
Board meeting held on July 28, 1998, Arch's financial advisor and legal counsel
again reviewed the proposed transaction.
The Arch Board met again on August 14, 1998 to further consider the
transactions contemplated by the Merger Agreement and, following the delivery
of an opinion by Bear Stearns as to the fairness of the consideration to be
paid by Arch in the proposed transactions, from a financial point of view, to
Arch and its stockholders, the Arch Board conditionally approved the Merger
Agreement, the Merger and the transactions contemplated thereby, including the
issuance of the Arch Combined Common Stock and warrants to acquire shares of
Arch Common Stock. Legal and financial advisors for Arch, MobileMedia and the
Unsecured Creditors Committee continued to negotiate various terms and
documentation, and conducted due diligence through August 17, 1998. The Arch
Board met again on August 17, 1998 received an update from Arch's legal counsel
on the status of negotiations and approved certain additional terms and
authorized management to execute definitive documents. On August 19, 1998, the
parties reached final agreement and thereafter executed the Agreement and Plan
of Merger dated as of August 18, 1998 (the "Original Merger Agreement"), the
First Amended Joint Plan of Reorganization dated as of August 18, 1998 (the
"First Amended Plan") and the related documents (collectively, the "August 18
Agreements").
On August 31 and September 1, 1998, senior management of Arch and
MobileMedia, the Unsecured Creditors Committee, the Standby Purchasers, and
their respective financial advisors and legal counsel, met to discuss concerns
resulting from increased volatility in the capital markets, the market price of
the Arch Common Stock since the execution and announcement of the August 18
Agreements and the process for submitting for Bankruptcy Court approval the
Initial Merger Order (as defined below), which provided for certain
exclusivity, termination fee and expense reimbursement provisions in the
Original Merger Agreement to become immediately enforceable. During these
meetings, the representatives of Arch, MobileMedia, the Unsecured Creditors
Committee and the Standby Purchasers negotiated modifications to the August 18
Agreements, principally to incorporate a subsequent pricing period, reduce the
minimum market price of the Arch Common Stock in such subsequent pricing period
(which would have the effect of increasing the number of shares of Arch Common
Stock issuable in the Rights Offering and decreasing the purchase price per
share if the market price for the Arch Common Stock in the subsequent pricing
period was less than $6.25) and provide for the issuance of the Arch
Stockholder Rights, or the Arch Participation Warrants in lieu of unexercised
Arch Stockholder Rights, to the Arch stockholders.
On September 1, 1998, the Arch Board, together with Arch's legal and
financial advisors, met to consider the proposed modifications to the August 18
Agreements. Subject to the delivery of a fairness opinion by Bear Stearns as to
the fairness of the consideration to be paid by Arch in the proposed
transactions, from a financial point of view, to Arch and its stockholders, the
Arch Board approved the proposed revisions to the August 18, 1998 Agreements
and authorized management to negotiate and execute documents reflecting the
proposed amendments. During the evening of September 1, 1998, Bear Stearns
delivered an oral fairness opinion as to the fairness of the consideration to
be paid by Arch in the proposed transactions, which opinion was subsequently
confirmed in writing.
Representatives of Arch, MobileMedia, the Unsecured Creditors Committee and
the Standby Purchasers thereafter negotiated various additional terms and
documentation, and amendments to the August 18 Agreements
43
<PAGE>
and a Second Amended Joint Plan of Reorganization were executed on September 3,
1998 (the "September 3 Amendments").
From time to time thereafter, the Unsecured Creditors Committee, the Standby
Purchasers, senior management of Arch and MobileMedia and their respective
financial advisors discussed concerns raised by the continued volatility in the
capital markets and the market price of the Arch Common Stock. As a result of
such volatility and market price, the date for approval of the disclosure
statement related to the Second Amended Joint Plan of Reorganization was
scheduled for October 14, 1998 and was adjourned to December 10, 1998.
In early November 1998, the Standby Purchasers formally proposed specific
modifications to the August 18 Agreements, as previously amended by the
September 3 Amendments. Such modifications principally consisted of fixing the
price of the Rights Offering at $2.00 per share of Arch Combined Common Stock
(the low point of the range in the subsequent pricing period incorporated by
the September 3 Amendments), increasing by 10,000,000 the number of Arch
Stockholder Rights and/or Arch Participation Warrants to be distributed to Arch
stockholders in the Arch Rights Offering and incorporating covenants of the
Standby Purchasers not to fund other potential MobileMedia acquisition
proposals and covenants of the Unsecured Creditors Committee (except as
required by their fiduciary duties) and Standby Purchasers not to seek or
negotiate any such other MobileMedia acquisition proposals.
On November 17, 1998, the Arch Board, together with Arch's legal and
financial advisors, met to consider the further modifications that had been
proposed. After confirming with its financial advisor that the proposed
modifications were within the scope of the fairness opinion previously
delivered by Bear Stearns and dated September 3, 1998, the Arch Board
unanimously approved the proposed revisions subject to execution of appropriate
amendments in sufficient time to permit the previously scheduled December 10,
1998 hearing on the MobileMedia disclosure statement to proceed without delay.
Thereafter, representatives of Arch, MobileMedia, the Unsecured Creditors
Committee and the Standby Purchasers negotiated various additional terms and
documentation, and amendments to the August 18 Agreements, as previously
amended by the September 3 Amendments, were executed on December 2, 1998 (the
"December 1 Amendments").
ARCH REASONS FOR THE MERGER
The Arch Board believes that the Merger represents a strategic opportunity to
significantly expand the size and scope of Arch's operations, while
significantly decreasing Arch's overall financial leverage. The Arch Board
believes that, following the Merger, Arch will have greater financial strength,
operational efficiencies and growth potential than either Arch or MobileMedia
would have on its own. The Arch Board has identified a number of potential
benefits of the proposed Merger that it believes will contribute to the success
of the combined entities, including the following:
. The combination of Arch and MobileMedia would create the second largest
paging company in the United States. Given high fixed infrastructure
costs in the paging industry, greater scale should permit increased
efficiencies and improved margins for the Combined Company.
. Arch's overall leverage should be reduced significantly as a result of
the Merger. Arch's ratio of consolidated total debt to Arch Adjusted
EBITDA (based on annualized Arch Adjusted EBITDA for the nine months
ended September 30, 1998) was 7:1 as of September 30, 1998; on a pro
forma basis, taking into account the Merger (but excluding the impact of
expected operational cost synergies) the leverage ratio for the Combined
Company as measured by the ratio of total debt to annualized Adjusted
Pro Forma EBITDA for the nine months ended September 30, 1998 would have
been 5.2:1.
. Arch would have access to MobileMedia's two nationwide narrowband PCS
licenses, and the cost of developing a nationwide narrowband PCS network
could be shared over the combined operations.
. Significant operational efficiencies could be realized through the
integration and combination of operations and the sharing of investment
in future infrastructure investments.
44
<PAGE>
. Greater scale should yield enhanced purchasing power and improved sales
distribution.
. Following the Merger, Arch would have a significantly stronger capital
structure and financial resources providing greater operating
flexibility, as well as enhancing Arch's capabilities to further
effectuate its strategic objective to participate in the continuing
paging industry consolidation.
. Arch's larger market capitalization and size should result in broader
research coverage and increased interest by institutional investors.
In reaching its decision to approve the Merger Agreement, the Merger and the
transactions contemplated thereby, the Arch Board also considered, in addition
to the factors described above: (i) information concerning the financial
performance and condition, business operations, capital and prospects of each
of Arch and MobileMedia on a stand-alone basis as well as a combined basis;
(ii) current industry, economic and market trends, including the likelihood of
continuing consolidation and competition in the paging industry and the
communications industry as a whole; (iii) the structure of the Merger and the
terms of the Merger Agreement and the Amended Plan; (iv) the opinion of Bear
Stearns that the consideration to be paid by Arch to the claimholders of
MobileMedia in connection with the Merger (and pursuant to the Amended Plan)
and the issuance to Arch stockholders of the Arch Stockholder Rights (or Arch
Participation Warrants in lieu of any unexercised Arch Stockholder Rights) as
the case may be, taken together as a whole, is fair, from a financial point of
view, to Arch and its stockholders; (v) the importance of market position,
significant scale and scope and financial resources to Arch's ability to
compete effectively in the future; (vi) the current and historic prices for the
Arch Common Stock and for shares of comparable publicly traded paging
companies; (vii) the valuation range ascribed to Arch Common Stock in the
Merger Agreement and the Amended Plan and the valuation implied for the
combined entity based on existing market multiples; (viii) the relative
contributions of Arch and MobileMedia to the net revenues and EBITDA of the
Combined Company; (ix) the benefits to Arch of the Initial Merger Order (as
defined herein); and (x) the risks of alternative proposals for the acquisition
of Parent and MobileMedia.
The Arch Board also considered potential risks relating to the Merger,
including: (i) the risk that the benefits and synergies sought from the Merger
would not be fully achieved; (ii) the management distraction inherent in
integrating two business operations; (iii) the risk that the Merger would not
be consummated as the result of the uncertainties of the bankruptcy process;
(iv) the requirement that Arch's stockholders approve the transaction and the
lack of a financing condition for Arch which could result in Arch being liable
to pay the MobileMedia Breakup Fee if its stockholders did not approve the
MobileMedia Proposal or the Charter Amendment Proposal or if Arch was not able
to secure sufficient financing to consummate the Merger; (v) the limitation on
the conduct of Arch's business under the Merger Agreement prior to the
Effective Time, as well as the length of time projected for satisfying all
closing conditions; (vi) the possibility that holders of outstanding Arch debt
securities might assert a claim that the Merger would result in a "change in
control" of Arch which would require Arch to offer to redeem such securities at
a premium to par or accreted value and (vii) the significant number of shares
of Arch Common Stock issuable in connection with the Merger including the
greater number of shares that would be issued to Unsecured Creditors as a
result of the amendments dated as of September 3, 1998 and December 1, 1998.
The Arch Board believed that these risks were outweighed by the potential
benefits to be realized by the Merger.
The foregoing discussion of the information and factors considered by the
Arch Board is not intended to be exhaustive but includes all material factors
considered by the Arch Board. In view of the wide variety of information and
factors considered, the Arch Board did not find it practical to, and did not,
assign any relative or special weights to the foregoing factors, and individual
directors may have given differing weights to different factors.
RECOMMENDATION OF THE ARCH BOARD OF DIRECTORS
After careful consideration, the Arch Board has unanimously approved the
Merger Agreement and the transactions contemplated thereby and recommends that
holders of Arch Common Stock and Series C Preferred Stock vote FOR the
MobileMedia Proposal.
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OPINION OF ARCH'S FINANCIAL ADVISOR
Bear Stearns served as financial advisor to Arch in connection with the
Merger and delivered its written opinion to the Arch Board on August 14, 1998,
to the effect that, as of such date and based on and subject to the
assumptions, limitations and qualifications set forth therein, (i) the
consideration to be paid by Arch to the claimholders of MobileMedia in
connection with the August 18 Agreements and (ii) the issuance of the Arch
Participation Warrants to holders of Arch Common Stock and Series C Preferred
Stock, taken together as a whole, is fair, from a financial point of view, to
Arch and its stockholders. On September 1, 1998, Bear Stearns delivered its
oral opinion to the Arch Board, subsequently confirmed in writing, to the
effect that, as of such date and based on and subject to the assumptions,
limitations and qualifications set forth therein, (i) the consideration to be
paid to the claimholders of MobileMedia in connection with the Merger (and
pursuant to the Amended Plan) and (ii) the issuance of the Arch Stockholder
Rights (or the Arch Participation Warrants in lieu of unexercised Arch
Stockholder Rights), as the case may be, to holders of Arch Common Stock and
Series C Preferred Stock, taken together as a whole, is fair, from a financial
point of view, to Arch and its stockholders. On December 1, 1998, Bear Stearns
confirmed in writing that, based solely on its review and analyses of drafts of
documents reflecting the December 1 Amendments and the reviews and analyses
performed by Bear Stearns in connection with the delivery of its opinion dated
September 3, 1998 (which reviews and analyses Bear Stearns did not update),
such opinion, as of the date it was delivered, would not have been affected by
the modifications contemplated by the December 1 Amendments.
THE FULL TEXT OF BEAR STEARNS' OPINION DATED SEPTEMBER 3, 1998 IS ATTACHED AS
ANNEX B TO THIS PROXY STATEMENT AND IS INCORPORATED HEREIN BY REFERENCE. ARCH
STOCKHOLDERS SHOULD READ THE BEAR STEARNS OPINION IN ITS ENTIRETY FOR
ASSUMPTIONS MADE, PROCEDURES FOLLOWED, MATTERS CONSIDERED AND LIMITATIONS ON
THE REVIEW UNDERTAKEN BY BEAR STEARNS. THE SUMMARY OF THE BEAR STEARNS' OPINION
SET FORTH HEREIN IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF
SUCH OPINION.
No limitations were imposed by Arch on the scope of Bear Stearns'
investigation or the procedures to be followed by Bear Stearns in rendering its
opinion. Bear Stearns was not requested to and did not make any recommendation
to the Arch Board as to the form or amount of the consideration to be paid by
Arch to MobileMedia claimholders in the Merger, which was determined through
arm's-length negotiations between the principal parties. In arriving at its
opinion, Bear Stearns did not ascribe a specific range of values to Arch or
MobileMedia, but rather made its determination as to the fairness to Arch and
its stockholders, from a financial point of view, of (i) the consideration to
be paid by Arch to MobileMedia claimholders in connection with the Merger (and
pursuant to the Amended Plan) and (ii) the issuance of the Arch Stockholder
Rights (or Arch Participation Warrants in lieu of any unexercised Arch
Stockholder Rights), as the case may be, to holders of Arch Common Stock and
Series C Preferred Stock, on the basis of the financial and comparative
analyses described below. Bear Stearns' opinion is for the use and benefit of
the Arch Board and was rendered to the Arch Board in connection with its
consideration of the Merger. Bear Stearns' opinion is not intended to be and
does not constitute a recommendation to any holder of Arch Common Stock or
Series C Preferred Stock as to how such stockholder should vote with respect to
the MobileMedia Proposal, or a recommendation as to any related financing
transaction. Bear Stearns was not requested to opine as to, and its opinion
does not address, Arch's underlying business decision to proceed with or effect
the Merger. It should be understood that, although subsequent developments may
affect the conclusions reached in Bear Stearns' opinion, Bear Stearns does not
have any obligation to, and does not intend to, update, revise or reaffirm its
opinion.
In arriving at its opinion, Bear Stearns reviewed and analyzed: (a) the
Original Merger Agreement, together with the exhibits and schedules thereto
dated as of August 18, 1998; (b) the First Amended Plan; (c) the Proxy
Statement as filed with the SEC on August 21, 1998; (d) a summary of the
proposed modifications to the Original Merger Agreement and the First Amended
Plan; (e) certain historical financial information regarding both Arch and
MobileMedia; (f) certain operating and financial information provided by the
senior managements of Arch and MobileMedia relating to Arch's and MobileMedia's
respective businesses and prospects, including the
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Combined Company Projections and certain other forward-looking information; (g)
publicly available financial data and market data of public companies that Bear
Stearns deemed generally comparable to Arch and MobileMedia or otherwise
relevant to its inquiry; (h) the financial terms, to the extent publicly
available, of certain mergers and acquisitions in the paging industry; (i)
certain estimates of anticipated cost savings, capital expenditure avoidance
and other benefits (collectively, the "Merger Benefits") expected to result
from the Merger, jointly prepared and provided to Bear Stearns by the senior
managements of Arch and MobileMedia; (j) certain estimates provided to Bear
Stearns by Arch's senior management of anticipated MobileMedia non-ordinary
course administrative claims and other pre-petition claims, and certain
liabilities to be assumed pursuant to the Amended Plan; (k) the historical
stock prices, trading volumes and valuation multiples for Arch Common Stock;
and (l) the pro forma financial impacts of the Merger on Arch. In addition,
Bear Stearns met separately and/or jointly with certain members of the senior
managements of Arch and MobileMedia to discuss (i) the current paging industry
landscape and competitive dynamics related thereto, (ii) each company's
operations, historical financial statements, future prospects and financial
condition, (iii) their views of the business, operational and financial
rationale for, and expected strategic benefits and other implications of, the
Merger and (iv) the Combined Company Projections and the Merger Benefits. Bear
Stearns also conducted such other studies, analyses, inquiries and
investigations as it deemed appropriate.
In arriving at its opinion, Bear Stearns assumed and relied upon the accuracy
and completeness of the financial and other information made available to,
discussed with or reviewed by Bear Stearns, or publicly available, without
assuming any responsibility for independent verification of such information,
the Combined Company Projections or the Merger Benefits and further relied upon
the assurances of Arch senior management that they were not aware of any facts
that would make such information, the Combined Company Projections or the
Merger Benefits incomplete or misleading in any material respect. With respect
to the Combined Company Projections and the Merger Benefits, upon the advice of
Arch, Bear Stearns assumed that such projections were reasonably prepared on
bases reflecting the best currently available estimates and judgments of the
senior management of Arch as to the anticipated future performance of Arch and
MobileMedia and as to the anticipated Merger Benefits achievable within the
time frames forecast therein. Bear Stearns did not undertake an independent
evaluation or appraisal of any of the assets or liabilities of Arch or
MobileMedia nor was Bear Stearns furnished with any such evaluation or
appraisal. Bear Stearns did not assume any obligation to conduct, nor did it
conduct, any physical inspection of the properties or facilities of Arch or
MobileMedia. Bear Stearns assumed that the transactions will be consummated in
accordance with the terms described in the Original Merger Agreement and the
First Amended Plan (each as amended to reflect the proposed modifications
reviewed by Bear Stearns), without any waiver of any material condition and
with all necessary material consents and approvals having been obtained without
any limitations, restrictions, conditions, amendments or modifications that
collectively would have a material effect on Arch, MobileMedia or the Merger
Benefits. Bear Stearns' opinion necessarily is based upon market, economic and
other conditions as they existed on, and could be evaluated as of, the date of
its opinion.
The following is a summary of the material financial and comparative analyses
performed by Bear Stearns and presented to the Arch Board.
PRO FORMA COMPANY TRADING ANALYSIS
Using publicly available information, Bear Stearns analyzed the stock market
valuation data for publicly traded companies in the paging industry. Such
companies, which were selected based on general business, operating and
financial characteristics representative of paging companies, included Paging
Network, Inc., Metrocall, Inc., PageMart, Inc., SkyTel Communications, Inc. and
Teletouch Communications, Inc. (collectively, the "Comparable Public
Companies"). For each of the Comparable Public Companies, based, in part, on
projections of EBITDA contained in third party research reports, Bear Stearns
calculated the multiples of enterprise value to latest quarter annualized
("LQA"), 1998 estimated and 1999 estimated EBITDA. The harmonic means of such
multiples were 8.9x, 8.3x and 6.8x, respectively. The range of multiples was
14.0x-6.9x, 16.5x-6.4x and 14.4x-5.6x, respectively. Bear Stearns noted that
Arch Common Stock trades at a medium-to-low EBITDA multiple compared to its
peer group. Based on the various multiples of enterprise value to EBITDA
calculated for the Comparable Public Companies, as described above (but which
excluded outliers), and on the
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LQA, 1998 estimated and 1999 estimated EBITDA for the Combined Company (both
with and without Merger Benefits, in each case as set forth in the Combined
Company Projections), Bear Stearns calculated a theoretical reference price
range of $2.50 to $7.50 per share. Based on this theoretical reference price
range thus calculated, Bear Stearns calculated implied enterprise values for
MobileMedia (after divestiture of its communications tower assets) ranging from
$631.3 million to $736.4 million. The resultant range of implied enterprise
values was then divided by the LQA, 1998 estimated and 1999 estimated EBITDA
(both with and without Merger Benefits, in each case as set forth in the
Combined Company Projections) of MobileMedia. The multiples thus calculated
implied a range of multiples from 4.5x to 7.0x (with Merger Benefits) and from
5.5x to 7.9x (without Merger Benefits). This range of multiples was then
compared to the corresponding range (excluding outliers) of multiples of LQA,
1998 estimated and 1999 estimated EBITDA for the Comparable Public Companies.
Such corresponding range (excluding outliers) was 5.6x to 8.2x.
Because of the inherent differences between the businesses, operations and
prospects of Arch, MobileMedia and the Comparable Public Companies, Bear
Stearns believed that it was inappropriate to, and therefore did not, rely
solely on the quantitative results of the analysis, and accordingly also made
qualitative judgments concerning differences between the characteristics of the
Combined Company and the Comparable Public Companies that would affect the
public trading values of the Combined Company and the Comparable Public
Companies.
The theoretical reference price range calculated by Bear Stearns was
calculated solely for analytical purposes and did not, and does not, constitute
or reflect an opinion or prediction as to what the value of Arch Common Stock
actually will be at the time of the Merger or the actual trading price or range
of trading prices of Arch Common Stock after announcement or consummation of
the Merger. Such actual trading prices may be impacted by, among other things,
prevailing interest rates, conditions in the financial markets, the anticipated
initial holdings of Arch Common Stock by Unsecured Creditors, some of whom may
prefer to liquidate their investment rather than hold it on a long-term basis,
the potential concentration of shares of Arch Common Stock that may be held by
the Standby Purchasers, arbitrage activity and other factors that generally
influence the prices of securities.
CONTRIBUTION ANALYSIS
Bear Stearns analyzed the relative contribution to combined estimated net
revenues and EBITDA for Arch and MobileMedia for the years 1998 through 2002.
This analysis indicated that in 1998, 1999, 2000, 2001 and 2002 Arch is
projected to contribute 48%, 51%, 52%, 52% and 52%, respectively, and
MobileMedia is projected to contribute 52%, 49%, 48%, 48% and 48%,
respectively, of estimated net revenues. This analysis also indicated that in
1998, 1999, 2000, 2001 and 2002 Arch is projected to contribute 57%, 61%, 56%,
55% and 55%, respectively, and MobileMedia is projected to contribute 43%, 39%,
44%, 45% and 45%, respectively, of estimated EBITDA. Bear Stearns compared such
relative contributions to the percentage of combined enterprise value
represented by a theoretical reference price range of $2.50 to $7.50 per share
of Arch Common Stock. Based on such reference range, Arch stockholders'
ownership interests, combined with Arch's existing debt, would represent 63% to
62% of the enterprise value of the Combined Company.
Bear Stearns also analyzed the relative contribution to EBITDA less interest
expense ("EBTDA") for Arch and MobileMedia for the years 1998 through 2002.
This analysis indicated that in 1998, 1999, 2000, 2001 and 2002 Arch is
projected to contribute 42%, 41%, 41%, 41% and 44%, respectively, and
MobileMedia is projected to contribute 58%, 59%, 59%, 59% and 56%,
respectively, of estimated EBTDA. Bear Stearns compared such relative
contributions to the percentage of combined equity ownership represented by the
same theoretical reference price range for Arch Common Stock (ranging from
$2.50 to $7.50 per share). Based on such theoretical reference price range,
Arch stockholders' fully diluted ownership interests (including the issuance of
the Arch Stockholder Rights and the Arch Participation Warrants, as the case
may be) would represent 35.8% of the Combined Company.
In addition to the above analyses, Bear Stearns calculated a range of values
for the Arch Participation Warrants utilizing the theoretical reference price
range, and considered the value of the Arch Stockholder Rights over the same
theoretical reference price range.
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The summary set forth above does not purport to be a complete description of
the analyses performed by Bear Stearns or its presentation to the Arch Board,
but describes in summary form the material elements of the analyses performed
in connection with the delivery of its opinion to the Arch Board. The
preparation of a fairness opinion involves various determinations as to the
most appropriate and relevant methods of financial and comparative analysis and
the application of those methods to the particular circumstances and,
therefore, such an opinion is not readily susceptible to summary description.
Furthermore, in arriving at its opinion, Bear Stearns did not attribute any
particular weight to any analysis or factor considered by it, but rather made
qualitative judgments as to the significance and relevance of each analysis and
factor. Accordingly, Bear Stearns believes that its analyses must be considered
as a whole and that considering any portion of such analyses and factors,
without considering all analyses and factors, could create a misleading or
incomplete view of the process underlying its opinion. In its analyses, Bear
Stearns made numerous assumptions with respect to industry performance, general
business and economic conditions and other matters, many of which are beyond
the control of Arch and MobileMedia. Any estimates contained in these analyses
are not necessarily indicative of actual values or predictive of future results
or values, which may be significantly more or less favorable than as set forth
therein. In addition, analyses relating to the value of businesses do not
purport to be appraisals or to reflect the prices at which businesses actually
may be sold.
Bear Stearns is an internationally recognized investment banking firm and, as
part of its investment banking activities, is regularly engaged in the
evaluation of businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, competitive bids, secondary
distributions of listed and unlisted securities, private placements and
valuations for corporate and other purposes. The Arch Board selected Bear
Stearns because of its expertise, reputation and familiarity with Arch in
particular and the telecommunications industry in general and because its
investment banking professionals have substantial experience in transactions
similar to the Merger.
As compensation for its services in connection with the Merger, Arch has
agreed to pay Bear Stearns a fee for acting as financial advisor in connection
with the Merger, including rendering its opinion. This fee includes (i)
approximately $250,000 in retainer fees which have been paid to date, (ii) a
fee of $500,000 paid upon delivery of the initial opinion and execution of the
Original Merger Agreement and (iii) an additional fee (against which are
credited the fees described in clauses (i) and (ii)) based on the value of the
total transaction, and payable upon consummation of the Merger, equal to
approximately $8.0 million. In the event the Merger is not consummated, but
Arch receives a "break-up" or other payment as a result of the termination or
cancellation of Arch's efforts to effect the Merger, Arch will pay Bear Stearns
a cash fee equal to the lesser of $3.0 million or 20% of such fee or payment.
In addition, Arch has agreed to reimburse Bear Stearns for reasonable out-of-
pocket expenses incurred in connection with the Merger and to indemnify Bear
Stearns and certain related persons for certain liabilities that may arise out
of its engagement by Arch and the rendering of its opinion.
An affiliate of Bear Stearns has committed to participate in the Bridge
Facility to Arch in connection with the Merger. In the event that Arch does not
complete the Planned ACI Notes, the Bridge Facility will be used to finance a
portion of the cash consideration to be paid to MobileMedia creditors in the
Merger. Arch has agreed to pay such affiliate of Bear Stearns certain fees in
connection with the Bridge Facility. See "Description of Certain Arch
Indebtedness--Bridge Facility". In addition, Bear Stearns has previously
received fees from Arch in connection with prior financial advisory and
investment banking services provided by Bear Stearns to Arch.
In the ordinary course of its business, Bear Stearns may actively trade in
Arch and/or MobileMedia debt and equity securities for its own account and for
the accounts of its customers and, accordingly, may at any time hold a long or
short position in such securities.
MOBILEMEDIA REASONS FOR THE MERGER
The Board of Directors of Parent and the Board of Directors of MMC
(collectively, the "MobileMedia Boards") have unanimously determined that the
Merger Agreement, the Merger and the other transactions contemplated thereby
(collectively the "Merger Transactions") are advisable and in the best
interests of Parent,
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MobileMedia and their respective estates. Accordingly, the MobileMedia Boards
have unanimously approved the Merger Transactions as described in more detail
in the Amended Plan and in the Merger Agreement and are seeking approval of the
Merger Transactions by the Bankruptcy Court.
The approvals by the MobileMedia Boards are the result of a lengthy process
of evaluating the alternatives available to MobileMedia in its reorganization
and the effects of such alternatives on various claimants, including
MobileMedia's secured and unsecured creditors and stockholders. During the
pendency of the Insolvency Proceedings, Parent and MobileMedia, assisted by
Blackstone, their financial advisor, conducted an extensive search for a third
party purchaser of its business. To this end, Parent and MMC met with
representatives of prospective purchasers, and a number of prospective
purchasers conducted due diligence reviews of MobileMedia. By letter dated
August 26, 1997, Parent formally solicited preliminary bids from prospective
purchasers. In response, it received preliminary conditional proposals from
certain prospective purchasers, including a proposal from Arch by letter dated
September 24, 1997. Upon receipt of the proposals, Parent and MobileMedia
provided the financial advisors to the Unsecured Creditors Committee and the
Pre-Petition Agent with copies of such proposals, and engaged in discussions
with the Unsecured Creditors Committee and the Pre-Petition Agent (and their
respective advisors) regarding the proposals. During the same period, Parent
and MobileMedia and their advisors had conversations with the parties making
the proposals in order to clarify the terms of the proposals and to provide
such parties with its reactions to the proposals.
Subsequent to these discussions, Parent and MobileMedia engaged in further
negotiations and discussions with various parties that had expressed an
interest in a business combination and assisted these parties in conducting
further due diligence. On January 27, 1998, having determined that none of the
conditional bids received from third parties was an acceptable alternative to
the stand-alone plan of reorganization that Parent and MobileMedia had
formulated, Parent and MobileMedia filed the Original Plan with the Bankruptcy
Court having jurisdiction over their reorganization. The Original Plan had the
support of the Pre-Petition Agent but was opposed by the Unsecured Creditors
Committee.
Subsequent to the filing of the Original Plan, various third parties
contacted Parent or MobileMedia regarding possible transactions and Parent and
MobileMedia continued to engage in discussions and negotiations with certain of
such parties and received certain conditional proposals regarding possible
business combinations. By letter dated March 17, 1998, Arch submitted a revised
proposal to Parent for a business combination with MobileMedia. Subsequent to
that date, Arch and MobileMedia each conducted due diligence with respect to
the other, and Arch, Parent, MobileMedia, the Pre-Petition Agent and the
Unsecured Creditors Committee engaged in lengthy negotiations in connection
with the form of the proposed transaction, the form and amount of the
consideration to be provided by Arch and the other provisions of the Merger
Agreement, including the amounts of "breakup" fees required to be paid by
MobileMedia to Arch (or vice versa) in certain circumstances and the details of
such circumstances.
After an extended period of analysis and negotiations, the parties reached
final agreement with respect to the terms of the August 18 Agreements,
including the Original Merger Agreement, the First Amended Plan and related
documents. In connection therewith, after consultation with Blackstone, the
Unsecured Creditors Committee, the Standby Purchasers and the Pre-Petition
Agent and their respective financial advisors, Parent and MobileMedia
determined that the agreement reached with Arch (as reflected in the August 18
Agreements) represented the highest and best offer received and was superior to
a stand-alone plan. The MobileMedia Boards approved the August 18 Agreements,
and the August 18 Agreements were executed on August 19, 1998.
Subsequently, senior management of Arch and MobileMedia, the Unsecured
Creditors Committee, the Standby Purchasers and their respective advisors met
to discuss concerns resulting from increased volatility in the capital markets,
the decrease in the market price of the Arch Common Stock subsequent to the
execution and announcement of the August 18 Agreements and the process for
submitting the Initial Merger Order to the Bankruptcy Court for approval, which
order provided for certain exclusivity, termination fee and expense
reimbursement provisions in the Original Merger Agreement to become immediately
enforceable.
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During these meetings, the representatives of Arch, MobileMedia, the
Unsecured Creditors Committee and the Standby Purchasers negotiated the
September 3 Amendments, which amendments are described under "Background of
Merger". After discussions between representatives of Parent and MobileMedia
and their advisors, on the one hand, and representatives of the Unsecured
Creditors Committee, the Standby Purchasers and the Pre-Petition Agent and
their respective advisors, on the other hand, and after consultation with
Blackstone, the September 3 Amendments were approved by the MobileMedia Boards,
and the September 3 Amendments were executed by the parties on September 3,
1998.
From time to time thereafter, the Unsecured Creditors Committee, the Standby
Purchasers, senior management of Arch and MobileMedia and their respective
financial advisors discussed concerns raised by the continued volatility in the
capital markets and the market price of the Arch Common Stock and other related
matters. As a result of such volatility and market price, the date for approval
of the disclosure statement related to the Seconded Amended Joint Plan of
Reorganization scheduled for October 14, 1998, was adjourned to December 10,
1998.
In early November, 1998, the Standby Purchasers proposed specific
modifications to the August 18 Agreements, as amended by the September 3
Amendments, which modifications are described under "Background of Merger".
Thereafter, representatives of Arch, MobileMedia, the Unsecured Creditors
Committee and the Standby Purchasers negotiated various additional terms and
documentation concerning the proposed modifications. After discussions between
representatives of Parent and MobileMedia and their advisors, on the one hand,
and the Unsecured Creditors Committee, the Standby Purchasers and the Pre-
Petition Agent and their respective advisors, on the other hand, and after
consultation with Blackstone, the changes as proposed and negotiated were
approved by the MobileMedia Boards, and the amendments reflecting such changes
were executed on December 2, 1998.
The Merger and Amended Plan, will, if consummated, result in MobileMedia's
emergence from bankruptcy and in the satisfaction and discharge or release of
virtually all the claims against Parent and MobileMedia that were in existence
on the Petition Date. A description of the consideration to be provided to
MobileMedia's creditors is set forth under "The MobileMedia Plan of
Reorganization--The Amended Plan".
In making its decision to approve the Merger Transactions, the MobileMedia
Board considered: (i) information concerning the financial performance and
condition, business operations, capital and prospects of each of MobileMedia
and Arch on a stand-alone basis as well as on a combined basis; (ii) current
industry, economic and market trends, including the likelihood of continuing
consolidation and competition in the paging industry and the communications
industry as a whole; (iii) the structure and terms of the Merger Transactions
and the Amended Plan; (iv) the importance of size and market position to the
ability to compete effectively in the future; (v) the current and historic
stock prices of Arch (on a stand-alone basis) and of comparable publicly traded
paging companies; (vi) hypothetical ranges of stock prices for MobileMedia on a
stand-alone basis, and Arch and MobileMedia on a combined basis, based on
comparable publicly traded companies; (vii) the relative contributions of
MobileMedia and Arch to the EBITDA of the Combined Company; (viii) the advice
received from Blackstone; (ix) the stated views of the Pre-Petition Agent and
of the Unsecured Creditors Committee with respect to the Merger Transaction;
and (x) in the case of the amendments dated as of September 3, 1998 and
December 1, 1998, the changes to the Merger Transactions effected thereby and
related matters.
The MobileMedia Board also considered potential risks relating to the Merger
Transactions including, but not limited to: (i) the risk that the benefits and
synergies sought from the Merger Transactions will not be achieved; (ii) the
management distraction inherent in integrating the business operations of the
combined companies; (iii) the limitation on the conduct of MobileMedia's
business under the Merger Agreement prior to the Effective Time, as well as the
length of time projected for satisfying all closing conditions; (iv) the
possibility that holders of outstanding Arch debt securities might assert a
claim that the Merger and related transactions would result in a "change of
control" of Arch which would require Arch to offer to redeem such securities at
a premium to par or accreted value; (v) the risk that the Merger Transactions
will not be consummated as a result of various factors, such as (a) the failure
to obtain final FCC approval or final approval of the Bankruptcy Court,
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(b) Arch's failure to meet certain conditions to the API Credit Facility
Increase which are required to effect the Merger Transaction or approval from
its stockholders, and (c) the failure of Arch to meet certain conditions to the
API Credit Facility Increase or any other applicable loan agreement of Arch or
API and (d) the failure of conditions to the Merger or any such financing to be
satisfied; and (vi) the obligation of MobileMedia, shortly after execution of
the Original Merger Agreement, to pay Arch $500,000 in reimbursement of certain
expenses already incurred by Arch in connection with such execution and the
possibility that MobileMedia might have to pay to Arch a substantial break-up
fee in certain circumstances. The MobileMedia Board believed that these risks
were outweighed by the potential gains to be realized from the Merger
Transactions.
The foregoing discussion of the information and factors considered by the
MobileMedia Boards is not intended to be exhaustive but includes the material
factors considered by the MobileMedia Boards. In view of the wide variety of
information and factors considered, the MobileMedia Boards did not find it
appropriate to, and did not quantify or otherwise assign any relative or
special weights to the foregoing factors, and individual directors may have
given differing weights to differing factors. In making its decision to approve
the Merger Transactions, the MobileMedia Board reviewed the totality of the
factors outlined above or otherwise considered and determined that the positive
effects of such factors outweighed negative effects.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Arch is unaware of any interests that any directors or officers of Arch have
in connection with the Merger that are in addition to the interests of the
stockholders of Arch generally.
ACCOUNTING TREATMENT
The Merger will be accounted for under the purchase method of accounting in
accordance with GAAP, whereby the purchase price will be allocated based on the
relative fair value of the assets acquired and liabilities assumed. Such
allocations will be made based upon valuations that have not been finalized.
The excess of such purchase price over the amounts so allocated will be
allocated to goodwill. It is anticipated that the most significant effect on
the purchase accounting will be to record a significant amount of goodwill and
other intangible assets which will result in substantial amortization charges
to the income of the Combined Company over the useful lives of such assets. See
"Risk Factors--Uncertainties Related to the Merger and the Reorganization".
In accordance with GAAP, Arch will be treated as the acquiror in the Merger
for accounting and financial reporting purposes, and Arch will report its
historical financial statements as the historical financial statements of the
combined entities.
THE ARCH RIGHTS OFFERING
As part of the MobileMedia Proposal, Arch will distribute to the holders of
shares of Arch Common Stock and Series C Preferred Stock outstanding on a date
to be determined by the Arch Board of Directors Arch Stockholder Rights to
purchase up to 44,893,166 shares of Arch Common Stock at a price of $2.00 per
share and, to the extent such Arch Stockholder Rights are not exercised, Arch
will distribute in lieu thereof Arch Participation Warrants to purchase an
equivalent number of shares of Arch Common Stock at the Warrant Exercise Price.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following discussion addresses the material United States federal income
tax considerations of the Merger and the Arch Rights Offering that are
applicable to United States holders of Arch Common Stock and Series C Preferred
Stock.
The following discussion is based on provisions of the Tax Code, applicable
Treasury Regulations, judicial authority and administrative rulings and
practice, all as of the date hereof. The Internal Revenue Service is not
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precluded from adopting a contrary position. In addition, there can be no
assurance that future legislative, judicial or administrative changes or
interpretations will not adversely affect the accuracy of the statements and
conclusions set forth therein. Any such changes or interpretations could be
applied retroactively and could affect the tax consequences of the Merger or
the Arch Rights Offering to Arch and its stockholders.
Arch stockholders should be aware that the following discussion deals only
with the tax consequences of the Merger and the Arch Rights Offering to Arch
and Arch stockholders and does not deal with any federal income tax
considerations that may be relevant to particular taxpayers in light of their
particular circumstances or to taxpayers who are subject to special treatment
under the federal income tax laws (including foreign persons, banks and other
financial institutions, tax exempt entities, broker-dealers, or insurance
companies), and does not address any aspect of foreign, state or local taxation
or federal estate or gift taxation. ACCORDINGLY, ARCH STOCKHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF
THE MERGER AND THE ARCH RIGHTS OFFERING, INCLUDING THE APPLICABLE FEDERAL,
STATE, LOCAL AND FOREIGN TAX CONSEQUENCES TO THEM.
THE MERGER
Hale and Dorr LLP, counsel to Arch, has rendered an opinion to Arch, attached
as Exhibit 8.1 to the Registration Statement of which this Proxy
Statement/Prospectus is a part (the "Exhibit Opinion") that no gain or loss
will be recognized by Arch or Arch stockholders as a result of the Merger.
Arch filed its federal income tax return reflecting NOL carryforwards of
approximately $280.0 million for its taxable year ended December 31, 1997, a
portion of which will begin to expire in the taxable year ending December 31,
2002. Section 382 of the Tax Code generally restricts a corporation's
utilization of its NOL carryforwards and other tax attributes by limiting the
amount of income earned by the corporation after an "ownership change" that may
be offset by tax attributes that arose prior to the ownership change (the
"Section 382 Limitation"). The issuance of Arch shares pursuant to the Merger
Agreement and the Amended Plan will cause Arch to experience an ownership
change as defined under Section 382(g) of the Tax Code on the Effective Date
(the "Change Date"). Consummation of the Amended Plan will also cause MMC to
experience such an ownership change.
In general, when the Section 382 Limitation applies, a corporation's
utilization of its pre-Change Date tax attributes (including NOL carryforwards
and certain amounts that otherwise would be allowable as deductions during the
five-year period beginning on the Change Date that are attributable to pre-
Change Date periods) for taxable years following the Change Date is limited to
an annual amount of tax attributes equal to (A) the product of (i) the value of
the corporation immediately before the ownership change multiplied by (ii) the
long-term tax exempt rate (as announced each month by the Treasury Department
and which was 4.80% for ownership changes occurring in December 1998) on the
date of ownership change, plus (B) any unused portion of the Section 382
Limitation from prior years.
A taxpayer generally must include in gross income the amount of any
cancellation of indebtedness income realized during the taxable year. Section
108 of the Tax Code provides, however, that when the cancellation of
indebtedness occurs in a case under the Bankruptcy Code, gross income does not
include any amount that otherwise would be included in gross income by reason
of the cancellation of indebtedness. Instead, cancellation of indebtedness
income will generally be applied to reduce certain tax attributes of the
taxpayer, including NOL carryforwards. Accordingly, it is anticipated that the
NOL carryforwards and possibly other tax attributes of MMC will be
substantially reduced as a result of consummation of the Amended Plan pursuant
to Section 382 and Section 108 of the Tax Code.
THE ARCH RIGHTS OFFERING
As more fully described below, the taxability of the distribution of Arch
Stockholder Rights and Arch Participation Warrants (collectively, the "Arch
Rights and Warrants") to Arch stockholders will be dependent
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upon various factual determinations which cannot be made at this time and as
to which the interpretation of various provisions of the tax law is uncertain.
The distribution of the Arch Rights and Warrants to holders of Arch Common
Stock will be a taxable distribution under Section 305(b)(2) of the Tax Code
if it has the effect of the receipt of money or other property by some Arch
shareholders and an increase in the proportionate interests of other Arch
shareholders in the assets or earnings and profits of Arch (the "Taxable
Effect"). For this purpose, the payment of interest to a holder of Arch's
outstanding 6 3/4% Convertible Debentures is treated as a distribution of
money or other property to an Arch shareholder. The distribution of the Arch
Rights and Warrants to holders of Arch Common Stock will be considered to have
the Taxable Effect unless a "full adjustment" in the conversion price of the
Convertible Debentures to reflect such distribution is made. Under the terms
of the Convertible Debentures, the $16.75 conversion price will be adjusted
only if the exercise price under the Arch Rights Offering is less than the
market value of Arch Common Stock on the record date for the Arch Rights
Offering.
Due to the factual uncertainty regarding the market price per share of Arch
Common Stock relative to the exercise price of the Arch Stockholders Rights on
the record date for the Arch Rights Offering and on the date of the
distribution of the Arch Rights and Warrants, it is not possible to ascertain
whether the conversion price of the Convertible Debentures will be adjusted.
Furthermore, as a matter of law, it is unclear when a "full adjustment" to the
conversion price of outstanding convertible debentures is required, and, if
required, what constitutes a "full adjustment" in order to avoid the Taxable
Effect by reason of a distribution of rights to holders of common stock to
acquire such stock.
In the Exhibit Opinion, Hale and Dorr has opined that (i) if the conversion
price of the Convertible Debentures is required to be adjusted in order to
avoid the Taxable Effect and is not adjusted, or if the conversion price is
adjusted but the adjustment does not constitute a "full adjustment," then the
distribution of the Arch Rights and Warrants to holders of Arch Common Stock
will be a taxable distribution to holders of Arch Common Stock under section
305(b)(2) of the Tax Code, (ii) if the conversion price of the Convertible
Debentures is not required to be adjusted in order to avoid the Taxable
Effect, or if the conversion price is adjusted and the adjustment constitutes
a "full adjustment," then the distribution of the Arch Rights and Warrants to
holders of Arch Common Stock will be a nontaxable distribution to holders of
Arch Common Stock under Section 305(a) of the Tax Code and (iii) the
distribution of the Arch Rights and Warrants to holders of Series C Preferred
Stock will be taxable as a distribution with respect to preferred stock under
Section 305(b)(4) of the Tax Code.
Any taxable distribution of the Arch Rights and Warrants will be taxed to
the holder as ordinary dividend income in an amount equal to the fair market
value of the Arch Rights and Warrants on the date of the distribution, but
only to the extent, if any, of the holder's share of Arch's current and
accumulated earnings and profits, as determined under the Tax Code. Any amount
received in excess of a holder's share of Arch's current and accumulated
earnings and profits will first reduce the holder's tax basis in the Arch
Common Stock or Series C Preferred Stock, as the case may be, and then, after
such basis is exhausted, generally be treated as capital gain. For purposes of
determining gain or loss to such holder if the Arch Rights and Warrants are
sold, the basis of the Arch Rights and Warrants will be equal to their fair
market value at the date of the distribution. The holding period for the Arch
Rights and Warrants will commence on the day following the distribution. A
holder will generally recognize capital loss if the Arch Rights and Warrants
lapse.
If the distribution of the Arch Rights and Warrants to a holder of Arch
Common Stock is nontaxable, then the holder will recognize no ordinary
dividend income or gain. The basis of the Arch Rights and Warrants for
purposes of determining gain or loss if the Arch Rights and Warrants are sold
will be calculated by allocating the basis of the shares with respect to which
the distribution of the Arch Rights and Warrants is made between such shares
and the Arch Rights and Warrants in proportion to the relative fair market
values of such shares and the Arch Rights and Warrants on the date of
distribution. However, if the fair market value of the Arch Rights and
Warrants is less than 15% of the fair market value at the time of the
distribution of the Arch Common Stock, with respect to which the Arch Rights
and Warrants are distributed, then the basis of the Arch Rights and
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Warrants to a holder will be zero unless the holder elects to allocate the
basis of the shares with respect to which the distribution of the Arch Rights
and Warrants is made between such shares and the Arch Rights and Warrants in
proportion to the relative fair market values of such shares and the Arch
Rights and Warrants on the date of distribution. The election must be made in
the form of a statement attached to the holder's timely filed tax return for
the year in which the Arch Rights and Warrants are received. The election must
be made with respect to all Arch Rights and Warrants received in respect of
shares of the same class of stock owned by the holder at the time of the
distribution and, once made, the election is irrevocable with respect to the
Arch Rights and Warrants for which made. The holding period for the Arch
Rights and Warrants will include the holding period for the shares in respect
of which the Arch Rights and Warrants were distributed. No allocation of basis
to the Arch Rights and Warrants will be made, and no gain or loss recognized,
if the Arch Rights and Warrants lapse.
If the Arch Rights and Warrants are exercised, the basis of the new shares
acquired will be the exercise price paid therefor plus the basis of the Arch
Rights and Warrants determined above. The holding period for the new shares
will begin with and include the day upon which the Arch Rights and Warrants
are exercised.
Arch has not requested a ruling from the IRS in connection with the Merger
or the Arch Rights Offering, or any of the other matters discussed herein, and
the statements and conclusions described above and in the Exhibit Opinion are
not binding on the IRS. There can be no assurance that future legislative,
judicial or administrative changes or interpretations will not adversely
affect the accuracy of such statements and conclusions set forth herein or
therein.
REGULATORY APPROVALS
FCC APPROVAL
The Communications Act requires prior FCC approval for the transfer of
actual or legal control of companies holding FCC authorizations. The
Communications Act requires that the FCC, as a prerequisite to granting its
approval, find that the proposed acquisition or transfer would serve the
public interest, convenience and necessity. The FCC also requires that the
purchaser or transferee demonstrate that it possesses the requisite legal,
technical and financial qualifications to operate the licensed facilities.
The prior approval of the FCC is a condition to the consummation of the
Merger. See "The Merger Agreement--Conditions". Arch and MobileMedia have
jointly filed applications with the FCC seeking FCC approval of the Merger,
including the transfer and/or assignment of FCC licenses held by Arch and
MobileMedia. There can be no assurance that the FCC will grant the approvals
sought or that, if granted, that such FCC approvals will be on a timely basis
or on terms and conditions acceptable to Arch and MobileMedia. In the event of
a challenge by an adverse party, the termination date established in the
Merger Agreement may not allow sufficient time for FCC approvals to be
received or, if received, for FCC approvals to become final. See "Industry
Overview--Regulation".
In its press releases issued on September 27 and October 21, 1996,
MobileMedia disclosed that misrepresentations had been made to the FCC and
that other violations had occurred during the licensing process for as many as
400 to 500 authorizations, or approximately 6% to 7% of its approximately
8,000 local transmission one-way paging transmitter stations. MobileMedia
caused an investigation to be conducted by its outside counsel, and a
comprehensive report regarding these matters was provided to the FCC on
October 15, 1996. In cooperation with the FCC, outside counsel's investigation
was expanded to examine all of MobileMedia's nationwide paging licenses, and
the results of that investigation were submitted to the FCC on November 8,
1996. Since November 8, 1996, MobileMedia has continued to provide additional
information to the FCC.
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On January 13, 1997, the FCC issued a public notice (the "Public Notice")
relating to the status of certain FCC authorizations held by MobileMedia. In
the Public Notice, the FCC announced that it had (i) automatically terminated
approximately 185 authorizations for paging facilities that were not
constructed by the expiration date of their construction permits and remained
unconstructed, (ii) dismissed approximately 93 applications for fill-in sites
around existing paging stations (which had been filed under the "40-mile rule")
as defective because they were predicated upon unconstructed facilities and
(iii) automatically terminated approximately 99 other authorizations for paging
facilities that were constructed after the expiration date of their
construction permits. With respect to the constructed stations, the Public
Notice permitted MobileMedia to continue to operate those stations on an
interim basis until further action by the FCC.
On April 8, 1997, the FCC issued an order commencing an administrative
hearing to inquire into the qualification of MobileMedia to remain an FCC
licensee. The FCC Order directed an administrative law judge ("ALJ") to take
evidence and develop a full factual record on issues concerning MobileMedia's
filing of false forms and applications in connection with its applications for
paging licenses. While the FCC Order initiated a fact-finding and evaluative
hearing process to gather information with which to make a decision, the FCC
directed the ALJ to make a recommended decision only as to factual matters.
Decisions as to the conclusions of law, the disposition of the case and any
appropriate sanctions were reserved to the FCC. During the proceeding,
MobileMedia would continue to operate in the ordinary course and provide
uninterrupted service to customers.
On April 23, 1997, MobileMedia filed a motion with the ALJ seeking a stay of
the hearing proceedings instituted by the FCC Order. MobileMedia sought the
stay on the ground that, absent a stay, the uncertainty created by the hearing
process would likely inflict material irreparable damage on MobileMedia's
business. In the motion, MobileMedia also sought confirmation that
MobileMedia's operations could be preserved through an assignment or transfer
of control of MobileMedia's licenses consistent with an FCC doctrine known as
Second Thursday. On May 5, 1997, the ALJ denied MobileMedia's motion for a
stay. On May 13, 1997, MobileMedia requested review of the ALJ's order and
sought a stay of the hearing proceeding and a determination that MobileMedia
should have an opportunity to comply with the FCC's Second Thursday doctrine.
The FCC granted MobileMedia's request on June 6, 1997 and issued a ten-month
stay of the hearing proceeding determining that the Second Thursday doctrine
may apply to publicly traded corporations, such as Parent. On March 27, 1998,
MobileMedia filed a request with the FCC to extend the ten-month stay for an
additional six months, in order to provide MobileMedia with sufficient time to
complete its reorganization process and to continue discussions among the
various parties in interest. This extension request was granted by the FCC on
June 4, 1998.
The Second Thursday doctrine balances the FCC's interests with the Bankruptcy
Code's policies of preserving value for creditors by permitting a company to
transfer its licenses as long as the individuals charged with misconduct
(i) would have no part in the proposed operations and (ii) would receive either
no benefit from the transfer or only a minor benefit that would be outweighed
by equitable considerations in favor of innocent creditors. As part of the
applications seeking FCC approval of the Merger, MobileMedia has also requested
termination of the hearing proceeding under the Second Thursday doctrine. FCC
approval of the transfer of MobileMedia's licenses pursuant to the Amended Plan
is a condition to effectiveness of the Amended Plan. Such approval, if granted,
will terminate the pending proceedings into MobileMedia's qualification to
remain an FCC licensee. On September 2, 1998, MobileMedia and Arch filed a
joint Second Thursday application. MobileMedia believes the plan of
reorganization referenced in the application satisfies the conditions of Second
Thursday. On October 5, 1998, a supplement was filed to notify the FCC of
certain modifications to the proposed transaction. The application was accepted
for filing by public notice dated October 15, 1998. On October 16, 1998,
MobileMedia and Arch filed a joint supplement of data requested by the staff of
the Wireless Telecommunications Bureau to assist in their evaluation of the
application. MobileMedia submitted additional information to the Wireless
Telecommunications Bureau on November 13, 1998. Public comments on the Second
Thursday application were due November 16, 1998. On that date, the FCC's
Wireless Telecommunications Bureau and the Pre-Petition Lenders filed comments
generally supporting grant of the application and Orbital submitted brief
informal comments opposing the application's request to terminate the hearing
and to waive the application fees. MobileMedia, Arch and the Pre-Petition
Lenders each submitted timely reply comments on or before November 27, 1998 and
David A. Bayer submitted a brief informal response to Orbital's letter. The
designated pleading cycle on the Second Thursday application is now closed.
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STATE APPROVALS
The prior approval of certain state regulatory authorities is a condition to
the consummation of the Merger. See "The Merger Agreement--Conditions". Arch
and MobileMedia have jointly filed applications with certain states seeking
approval of the consummation of the Merger. It is possible that one or more
other states may assert a right to review and approve the Merger. In such
event, Arch and MobileMedia may choose to challenge such assertion, seek to
obtain such approval or take such other or further actions as they deem
necessary or advisable at the time. If any state were to claim a right to
approve the Merger, there is no assurance that any challenge to override or
overturn that claim would be successful or that any approval, if sought, would
be granted or, if granted, would be so granted on a timely basis or on terms
and conditions acceptable to Arch and MobileMedia. In the event of a challenge
by an adverse party, the termination date established in the Merger Agreement
may not allow sufficient time for state regulatory approvals to be received or,
if received, for such approvals to become final. See "Industry Overview--
Regulation".
ANTITRUST
The Merger is subject to the requirements of the HSR Act, and the rules and
regulations thereunder, which provide that certain transactions may not be
consummated until certain required information and materials have been
furnished to the Antitrust Division and the FTC and certain waiting periods
have expired or been terminated. Arch and MobileMedia filed the required
information and material with the Antitrust Division and the FTC and the
waiting periods have expired.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Merger. The termination of the
HSR Act waiting periods does not preclude the Antitrust Division or the FTC
from challenging the Merger on antitrust grounds. Accordingly, at any time
before or after the Effective Time, either the Antitrust Division or the FTC
could take such action, including seeking to enjoin the Merger, under the
antitrust laws as it deems necessary or desirable in the public interest.
Certain other persons, including the attorney general of one or more states or
private parties, could take action under the antitrust laws.
In addition, as part of the FCC's consideration of whether granting consent
to the transfer of control of Arch's and MobileMedia's FCC licenses would serve
the public interest, the FCC takes into account the potential effect that the
Merger may have on competition in affected markets. The FCC's antitrust
analysis may differ from that of the Antitrust Division and the FTC, and could
serve as a basis for the FCC denying consent to the transfer or imposing
conditions on its consent, which could materially adversely affect the combined
operations of Arch and MobileMedia.
FEDERAL SECURITIES LAW CONSEQUENCES
The Arch Common Stock, Class B Common Stock and the Arch Participation
Warrants issuable in connection with the Merger will generally be freely
tradeable under the Securities Act following the Merger, provided the holder
thereof is not deemed to be an affiliate of Arch following the Merger within
the meaning of Rule 144 or an underwriter within the meaning of Section 2(11)
of the Securities Act or Section 1145(b) of the Bankruptcy Code. The Arch
Stockholder Rights are not transferable; the Arch Participation Warrants are
transferable.
The shares of Arch Common Stock to be distributed from the Creditor Stock
Pool are exempt from registration under the Securities Act pursuant to Section
1145 of the Bankruptcy Code, and will therefore be freely tradeable by any
Unsecured Creditor who is not deemed to be an affiliate of Arch or an
underwriter. Arch has agreed to register (i) the Rights to be issued in
connection with the Rights Offering, together with the shares of Arch Common
Stock which may be issued thereunder, and (ii) the Arch Participation Warrants,
together with the shares of Arch Combined Common Stock which may be issued
thereunder. Unsecured Creditors who receive these securities may also freely
sell such securities provided they are not deemed to be affiliates of Arch or
an underwriter. Any securities of Arch held by a person deemed to be an
"affiliate" of Arch may be sold pursuant to Rule 144 subject to certain
restrictions. Arch has agreed to register these securities for resale by
persons who may be deemed to be underwriters, such as the Standby Purchasers.
See "The Merger Agreement--Related Agreements--Registration Rights Agreements".
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NASDAQ NATIONAL MARKET LISTING
Arch intends to file an application to have the shares of Arch Common Stock
(including all such shares issuable upon conversion of the Arch Class B Common
Stock and upon exercise of the Arch Participation Warrants) to be issued in
connection with the Merger, Amended Plan and Standby Purchase Commitments
approved for quotation on the NNM. See "Risk Factors--Risks Related to Arch--
Risk of Arch Common Stock Being Delisted from the Nasdaq National Market" and
"Merger Agreement--Nasdaq National Market Quotation".
APPRAISAL RIGHTS
Holders of Arch Common Stock or Series C Preferred Stock are not entitled to
dissenters' appraisal rights under the DGCL in connection with the Merger
because Arch is not a constituent corporation in the Merger.
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THE MERGER AGREEMENT
The following is a summary of certain provisions of the Merger Agreement, a
composite copy of which (reflecting the September amendments and the December
amendments) is attached as Annex A to this Proxy Statement/Prospectus and
incorporated herein by reference in its entirety. Although this section
summarizes the material terms of the Merger Agreement, such summary is
qualified in its entirety by reference to the Merger Agreement. Stockholders
of Arch are urged to read the Merger Agreement in its entirety for a more
complete description of the Merger. Defined terms used herein not otherwise
defined shall have the meaning ascribed to them in the Merger Agreement.
THE MERGER
The Merger Agreement and the Amended Plan provide that, following the
approval by the stockholders of Arch and the satisfaction or, if legally
permissible, waiver of the conditions to the Merger, MMC will be merged with
and into the Merger Subsidiary. Immediately prior to the Merger, Parent will
contribute all of its assets to MMC, and MMC's subsidiaries will be
consolidated into a single subsidiary which will become an indirect wholly
owned subsidiary of Arch as a result of the Merger.
EFFECT OF THE MERGER
At the Effective Time, all of the estate, property, rights, privileges,
immunities, powers and franchises of MMC will be transferred to and vested in
the Surviving Corporation.
REPRESENTATIONS AND WARRANTIES
In the Merger Agreement, each of Parent and MMC on the one hand, and Arch on
the other, has made certain representations and warranties regarding, among
other things: (i) their respective organization, qualification, corporate
power and authority to enter into and perform their respective obligations
under the Merger Agreement; (ii) capitalization; (iii) the compliance of the
transactions contemplated by the Merger Agreement with their respective
certificates of incorporation and by-laws, certain contracts and applicable
laws; (iv) their respective subsidiaries; (v) the accuracy of their respective
financial statements; (vi) the absence of certain specified types of changes
in the business, assets (including licenses, franchises and other intangible
assets), financial condition, operating income and prospects of each party and
their respective subsidiaries, taken as a whole; (vii) the absence of
undisclosed liabilities; (viii) taxes; (ix) tangible assets; (x) owned real
property; (xi) intellectual property; (xii) real property leases; (xiii)
certain contracts which are material to the respective parties; (xiv) the
possession of licenses and authorizations; (xv) the absence of certain
litigation; (xvi) certain employment contracts and related matters; (xvii)
employee benefit plans; (xviii) certain environmental matters; (xix)
compliance with applicable laws; (xx) certain information with respect to the
parties' respective subscribers and suppliers; (xxi) capital expenditures;
(xxii) brokers' fees; (xxiii) the accuracy of certain information provided by
each of the parties in connection with the various documents to be filed with
the applicable regulatory authorities in connection with the Merger Agreement
and the transactions contemplated thereby and (xxiv) the accuracy of the
information provided by each of the parties to the other. In addition, Arch
has made representations concerning (i) the Merger Subsidiary, (ii) the
opinion of Bear Stearns regarding the fairness of the Merger, from a financial
point of view, to Arch and its stockholders, (iii) certain amendments to
Arch's shareholders' rights plan (iv) Section 203 of the DGCL and (v) the vote
of Arch stockholders required to approve the Transactions.
CERTAIN COVENANTS AND AGREEMENTS
Except as otherwise contemplated by the Merger Agreement or the Amended Plan
and, in the case of Parent and MMC, by the Bankruptcy Code, the Federal Rules
of Bankruptcy Procedure, the operation and information requirements of the
Office of United States Trustee, and any orders entered or approvals or
authorizations granted by the Bankruptcy Court in the Insolvency Proceedings
during the period prior to the Effective Time (collectively, "Bankruptcy-
Related Requirements"), each of MobileMedia, MMC and Arch is required to (and
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is required to cause each of its respective subsidiaries, as applicable, to)
conduct its operations in the ordinary course of business and in compliance
with all other applicable laws and regulations, and, to the extent consistent
therewith, use all reasonable efforts to preserve intact its current business
organization, keep its physical assets in good working condition, pay all taxes
(all post-petition taxes in the case of the Parent and MMC) as they become due
and payable, maintain insurance on its business and assets (in amounts and
types consistent with past practice), keep available the services of its
current officers and employees and preserve its relationships with customers,
suppliers and others having business dealings with it to the end that its
goodwill and ongoing business shall not be impaired in any material respect.
BEST EFFORTS
Except as otherwise contemplated by the Merger Agreement, or in the case of
the Parent and MMC, except to the extent required by Bankruptcy-Related
Requirements, Arch, the Parent and MMC are obligated to use their respective
best efforts to cause the transactions contemplated by the Merger Agreement and
the Amended Plan to be consummated in accordance with the terms thereof.
APPROVALS; CONSENTS
The Merger Agreement generally obligates Arch, the Parent and MMC to obtain
and maintain in full force and effect all approvals, consents, permits,
licenses and other authorizations from all Governmental Entities (as defined
therein) reasonably necessary or required for the operation of their respective
businesses as presently conducted, as and when such approvals, consents,
permits, licenses or other authorizations are necessary or required. The Merger
Agreement provides that none of Arch, the Parent or MMC shall make any material
commitments to any Governmental Entity relating to any material approval,
consent, permit or license without the prior written consent of the other, and
that Arch, the Parent and MMC shall, and shall cause each of their respective
subsidiaries, as applicable, to, use their reasonable best efforts to resolve
any competitive issues relating to or arising under the HSR Act or any other
federal or state antitrust or fair trade law raised by any Governmental Entity.
In the event of a challenge to the transactions contemplated by the Merger
Agreement pursuant to the HSR Act, Arch, the Parent and MMC is required to (and
is required to cause each of its respective subsidiaries to), use their
reasonable best efforts to defeat such challenge, including by institution and
defense of litigation, or to settle such challenge on terms that permit the
consummation of the transactions contemplated by the Merger Agreement;
provided, however, that in no event shall Arch be required to divest or hold
separate any portion of its business or otherwise take any action, which
divestiture or holding separate or taking such action would be materially
adverse to the continued conduct of either party's businesses. Arch is
obligated to pay all filing fees payable by either Arch, the Parent or MMC in
connection with the HSR Act.
ARCH NOT TO CONTROL
The Merger Agreement provides that, pending the consummation of the
transactions contemplated thereby, Arch shall not obtain actual (de facto) or
legal (de jure) control over the Parent and MobileMedia. Specifically, and
without limitation, the responsibility for the operation of the Parent and
MobileMedia shall, pending the consummation of the transactions contemplated
thereby, reside with the Parent and MMC Boards (subject to the jurisdiction of
the Bankruptcy Court). Notwithstanding the foregoing, Arch and the Parent and
MobileMedia have agreed to consult and cooperate with one another and consider
in good faith the views of one another with respect to the assumption or
rejection by the Parent and MobileMedia prior to the Effective Time of any
unexpired lease, license or other executory contract.
BANKRUPTCY COVENANTS
The Amended Plan requires MobileMedia and the Parent to file certain motions
with the Bankruptcy Court and take certain other actions in furtherance of the
transactions contemplated by the Merger Agreement. See "The MobileMedia Plan of
Reorganization". On September 3, 1998, MobileMedia and Parent filed a motion
seeking Bankruptcy Court approval of the exclusivity provisions, breakup fees
and expense reimbursement provisions of the Merger Agreement, which motion was
approved by the Bankruptcy Court (the "Initial Merger Order") on
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September 4, 1998. See "--Exclusivity Provisions", "--Bankruptcy Fee
Provisions" and "--Reimbursement of Arch's Expenses".
CONDUCT OF MOBILEMEDIA'S BUSINESS PENDING THE MERGER
The Merger Agreement provides that prior to the Effective Time, except to the
extent required by any Bankruptcy-Related Requirements, MMC and Parent shall
not and shall not permit any of their respective subsidiaries to, without the
prior written consent of Arch and except as otherwise contemplated by the
Merger Agreement or the Amended Plan: (i) except for assets not in excess of
$2.5 million of fair market value, sell, lease, mortgage, pledge, encumber or
dispose of any of its assets, other than in the ordinary course of business;
(ii) (A) except for borrowings under the existing DIP Credit Agreement in an
aggregate amount outstanding at any one time equal to the sum of (x) amounts
representing costs incurred or committed as of the date hereof in connection
with MMC's N-PCS network construction ("N-PCS Construction") plus any
additional costs for N- PCS Construction approved by Arch and (y)(1) at any
time on or before December 31, 1998 up to a maximum of $20.0 million, and (2)
at any time between January 1, 1999 and June 30, 1999 up to a maximum of $30.0
million, previously committed or create, incur or assume any indebtedness for
borrowed money not currently outstanding (including obligations in respect of
capital leases); (B) assume, guarantee, endorse or otherwise become liable or
responsible for the obligations of any other person; or (C) make any loans,
advances or capital contributions to, or investments in, any other person;
(iii) except for changes to MobileMedia's payroll program as previously
disclosed to Arch, enter into, adopt or amend any MobileMedia employee benefit
plan, or (except for normal adjustments in the ordinary course of business)
increase in any material respect the compensation or fringe benefits of, or
modify the employment terms of its directors, officers or employees generally
or pay any benefit not required by the terms in effect on the date hereof of
any existing MobileMedia employee benefit plan; (iv) change in any material
respect its accounting methods, principles or practices, except insofar as may
be required by a generally applicable change in GAAP; (v) pay any pre-petition
liability other than liabilities in connection with the assumption of pre-
petition contracts and with respect to wages, taxes, customer refunds and other
related expenses that MobileMedia is authorized to pay by the Bankruptcy Court
and adequate protection payments and the payment to the Pre-Petition Lenders of
the cash proceeds from the MobileMedia Tower Site Sale, in each case as
authorized by the Bankruptcy Court; (vi) amend its certificate of
incorporation, by-laws or other comparable organizational documents; (vii)
sell, assign, transfer or license any material licenses, authorizations or
intellectual property other than in the ordinary course of business; (viii)
enter into, amend, terminate, take or omit to take any action that would
constitute a material violation of or default under, or waive any material
rights under, certain licenses, authorizations, contracts or agreements other
than in the ordinary course of business; (ix) make or commit to make any
capital expenditure not set forth in the capital expense budget provided to
Arch; (x) (A) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, securities or other property) in respect of,
any of its outstanding capital stock (other than, with respect to a subsidiary
of MMC, to its corporate parent), (B) split, combine or reclassify any of its
outstanding capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
outstanding capital stock, or (C) purchase, redeem or otherwise acquire any
shares of outstanding capital stock or any rights, warrants or options to
acquire any such shares; (xi) issue, sell, grant or pledge any shares of its
capital stock, any other voting securities or any securities convertible into
or exchangeable for, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible or exchangeable securities, other than
upon the exercise of options, or upon the conversion or exchange of securities,
outstanding on the date of the Merger Agreement; (xii) make any material tax
election or settle or compromise any material tax liability or any pending or
threatened suit or action other than consistent with Parent's practice since
the Petition Date or pursuant to the terms of the Amended Plan; (xiii)
establish, or transfer any assets to, a trust for purposes of funding any
employee benefit plan, including, without limitation, a so-called "rabbi
trust," except as required by applicable law; or (xiv) agree in writing or
otherwise to take any of the foregoing actions.
CONDUCT OF ARCH'S BUSINESS PENDING THE MERGER
The Merger Agreement provides that, prior to the Effective Time, Arch shall
not, and shall not permit any of its subsidiaries to, without the prior written
consent of MobileMedia, and except as otherwise contemplated
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by the Merger Agreement or the Amended Plan: (i) dispose of any of its assets
or acquire or dispose of any assets or shares or other equity interests in or
securities of any subsidiary, other than in the ordinary course of business,
except for (A) the mortgage, pledge or encumbering of such assets, shares,
equity interests or securities pursuant to agreements existing as of the date
of the Merger Agreement or agreements entered into to provide funding, in whole
or in part, for the amounts payable by Arch under the Merger Agreement or the
Amended Plan or (B) the acquisition of such assets, shares, equity interests or
securities of any other Person (as defined therein) with an aggregate purchase
price not exceeding $25.0 million; (ii) (A) except for borrowings under the API
Credit Facility or borrowings to provide funding for the amounts payable by
Arch under the Merger Agreement or the Amended Plan, create, incur or assume
any indebtedness for borrowed money not currently outstanding (including
obligations in respect of capital leases); (B) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly, contingently or
otherwise) for the obligations of any other person; or (C) make any loans,
advances or capital contributions to, or investments in, any other person;
(iii) change in any material respect its accounting methods, principles or
practices, except insofar as may be required by a generally applicable change
in GAAP; (iv) amend its certificate of incorporation, by-laws or other
comparable organizational documents; (v) sell, assign, transfer or license any
material license, authorization or intellectual property, other than in the
ordinary course of business; (vi) enter into, amend, terminate, take or omit to
take any action that would constitute a material violation of or default under,
or waive any material rights under, certain licenses, contracts or agreements,
other than in the ordinary course of business; (vii) make or commit to make any
capital expenditure not set forth in the capital expense budget provided to
Parent; (viii) except as required under agreements existing as of the date of
the Merger Agreement, (A) declare, set aside or pay any dividends on, or make
any other distributions (whether in cash, securities or other property) in
respect of, any of its outstanding capital stock (other than, with respect to
any subsidiary of Arch, to its corporate parent), (B) split, combine or
reclassify any of its outstanding capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its outstanding capital stock, or (C) purchase, redeem or
otherwise acquire any shares of outstanding capital stock or any rights,
warrants or options to acquire any such shares, except for the acquisition of
shares from holders of options in full or partial payment of the exercise price
payable by such holder upon exercise of options; (ix) issue, sell, grant,
pledge any shares of its capital stock, any other voting securities or any
securities convertible into or exchangeable for, or, if outstanding as of the
date of the Merger Agreement, change the material terms of any of the
foregoing, or any rights, warrants or options to acquire, any such shares,
voting securities or convertible or exchangeable securities, other than
pursuant to the terms of any benefit plan as in effect on the date of the
Merger Agreement in accordance with past practice or upon the exercise of
options, or upon the conversion or exchange of securities, outstanding on the
date of the Merger Agreement; (x) make any material tax election or settle or
compromise any material tax liability or any pending or threatened suit or
action; (xi) establish, or transfer any assets to, a trust for purposes of
funding any of Arch's employee benefit plans, including, without limitation, a
so-called "rabbi trust," except as required by applicable law; or (xiii) agree
in writing or otherwise to take any of the foregoing actions.
NOTICE OF BREACHES
The Merger Agreement provides that each of Arch, Parent and MobileMedia shall
promptly deliver to the other parties written notice of any event or
development that would (a) render any statement, representation or warranty of
such party in the Merger Agreement inaccurate or incomplete in any respect, or
(b) constitute or result in a breach by such party of, or a failure by such
party to comply with, any agreement or covenant in the Merger Agreement
applicable to such party. No such disclosure shall be deemed to avoid or cure
any such misrepresentation or breach.
EXCLUSIVITY PROVISIONS
The Merger Agreement provides that, except for the MobileMedia Tower Site
Sale, Parent and MMC shall not, and shall cause each of their respective
subsidiaries, as applicable, and each of their respective directors, officers,
employees, financial advisors, representatives or agents, not to, directly or
indirectly, (i) solicit, initiate, engage or participate in or encourage
discussions or negotiations with any person or entity (other than Arch)
concerning any merger, consolidation, sale of material assets, tender offer
for, recapitalization of or accumulation
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or acquisition of securities issued by MobileMedia or any of its subsidiaries,
as applicable, proxy solicitation or other business combination involving
MobileMedia or any of its subsidiaries, as applicable, (each, a "MobileMedia
Acquisition Proposal") or (ii) provide any non-public information concerning
the business, properties or assets of MobileMedia or any of its subsidiaries,
as applicable, to any person or entity (other than to Arch and other parties in
accordance with existing confidentiality arrangements). The Merger Agreement
provides that Parent and MMC shall, and shall cause each of their respective
subsidiaries, as applicable, to immediately cease any and all existing
activities, discussions or negotiations with any person other than Arch with
respect to any MobileMedia Acquisition Proposal. Parent and MMC are obligated
under the Merger Agreement to immediately notify Arch of, and to disclose to
Arch all details of, any such inquiries, discussions or negotiations.
The Merger Agreement provides, however, that prior to the entry of the
Confirmation Order, MobileMedia may, to the extent required by the Bankruptcy-
Related Requirements, or to the extent that MMC's Board of Directors
determines, in good faith after consultation with outside legal counsel, that
its fiduciary duties under applicable law require it to do so, participate in
discussions or negotiations with, and, subject to the requirements set forth
below, furnish information to any person, entity or group after such person,
entity or group has delivered to MobileMedia, in writing, an unsolicited bona
fide offer to effect a MobileMedia Acquisition Proposal that the MMC Board in
its good faith judgment determines, after consultation with its independent
financial advisors, would result in a transaction more favorable to the
claimholders of MobileMedia from a financial point of view than the Merger and
for which financing, to the extent required, is then committed (or which, in
the good faith judgment of the MMC Board, is reasonably capable of being
obtained) and which (in the good faith judgment of such Board) is likely to be
consummated (a "MobileMedia Superior Proposal"). In the event MMC receives a
MobileMedia Superior Proposal, nothing contained in the Merger Agreement (but
subject to the terms thereof) will prevent the MMC Board from approving such
MobileMedia Superior Proposal or requesting authorization of such MobileMedia
Superior Proposal from the Bankruptcy Court, if the MMC Board determines, in
good faith, after consultation with outside legal counsel, that such action is
required by its fiduciary duties under applicable law; in such case, the MMC
Board may terminate the Merger Agreement; provided, however, that MMC may not
terminate the Merger Agreement until at least 48 hours after Arch's receipt of
a copy of such MobileMedia Superior Proposal. The Merger Agreement further
provides that MobileMedia and each of its subsidiaries, as applicable, shall
not provide any non-public information to a third party unless: (i) MobileMedia
provides such non-public information pursuant to a non-disclosure agreement
with terms regarding the protection of confidential information at least as
restrictive as such terms in the confidentiality agreements between Parent and
Arch (the "Confidentiality Agreements"); and (ii) such non-public information
has previously been delivered or made available to Arch.
MMC, on behalf of itself, Parent and MobileMedia, has agreed not to make any
material change to the Amended Plan or the Merger Agreement, exercise any
rights they may have to terminate the Merger Agreement or take any action which
could result in the termination of the Merger Agreement by Arch without the
prior written consent of the Unsecured Creditors Committee or the entry of an
order by the Bankruptcy Court. MMC has further agreed not to exercise its
rights to respond to or negotiate acquisition proposals received from third
parties without advising and consulting with the Unsecured Creditors Committee.
MMC also agreed that the Unsecured Creditors Committee could request MMC to
exercise its right to terminate the Merger Agreement, and if MMC does not do
so, the Unsecured Creditors Committee may seek an order of the Bankruptcy Court
to do so.
The Merger Agreement provides that except for the contemplated sale of
certain tower sites owned by Arch (the "Tower Site Sale") Arch shall not, and
shall cause each of its subsidiaries and each of their respective directors,
officers, employees, financial advisors, representatives or agents not to,
directly or indirectly, (i) solicit, initiate, engage or participate in or
encourage discussions or negotiations with any person or entity (other than
MobileMedia and, in connection with the transactions contemplated by the Merger
Agreement, the Unsecured Creditors Committee) concerning any merger (other than
mergers of Arch subsidiaries in connection with acquisitions of other
businesses by Arch (x) with a fair market value not in excess of $25.0 million
and (y) that would not upon the closing thereof be in breach of Arch's
obligations under the Merger Agreement), consolidation, sale of material
assets, tender offer for, recapitalization of or accumulation or acquisition of
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securities issued by Arch or any of Arch's subsidiaries, proxy solicitation or
other business combination (other than business combinations of subsidiaries of
Arch in connection with acquisitions of other businesses by Arch (x) with a
fair market value not in excess of $25.0 million and (y) that would not upon
the closing thereof be in breach of Arch's obligations under the Merger
Agreement), involving Arch or any of its subsidiaries (each, an "Arch
Acquisition Proposal") or (ii) except as permitted by the foregoing clause (i),
provide any non-public information concerning the business, properties or
assets of Arch or any its subsidiaries to any person or entity (other than
MobileMedia or any of Arch's financing sources). The Merger Agreement provides
that Arch and its subsidiaries shall immediately cease any and all existing
activities, discussions or negotiations with any person other than MobileMedia
with respect to any Arch Acquisition Proposal. Arch is obligated under the
Merger Agreement to immediately notify MobileMedia of, and to disclose to
MobileMedia all details of, any such inquiries, discussions or negotiations.
The Merger Agreement provides, however, that prior to the Special Meeting,
Arch may, to the extent that the Arch Board determines, in good faith, after
consultation with outside legal counsel, that its fiduciary duties under
applicable law require it to do so, participate in discussions or negotiations
with, and, subject to the requirements set forth below, furnish information to
any person, entity or group after such person, entity or group has delivered to
Arch, in writing, an unsolicited bona fide offer to effect an Arch Acquisition
Proposal that the Arch Board in its good faith judgment determines, after
consultation with its independent financial advisors, would result in a
transaction more favorable to the stockholders of Arch from a financial point
of view than the transactions contemplated thereby and for which financing, to
the extent required, is then committed (or which, in the good faith judgment of
the Arch Board, is reasonably capable of being obtained) and which (in the good
faith judgment of the Arch Board) is likely to be consummated (an "Arch
Superior Proposal"). In the event Arch receives an Arch Superior Proposal,
nothing contained in the Merger Agreement (but subject to the terms thereof)
will prevent the Arch Board from recommending to its stockholders such Arch
Superior Proposal if the Arch Board determines, in good faith, after
consultation with outside legal counsel, that such action is required by its
fiduciary duties under applicable law. The Merger Agreement further provides
that Arch shall not provide any non-public information to a third party unless:
(i) Arch provides such non-public information pursuant to a non-disclosure
agreement with terms regarding the protection of confidential information at
least as restrictive as such terms in the Confidentiality Agreement; and (ii)
such non-public information has previously been delivered or made available to
MobileMedia.
The exclusivity provisions became effective on September 4, 1998, the date
the Initial Merger Order was entered by the Bankruptcy Court.
BREAKUP FEE PROVISIONS
The Merger Agreement provides that in the event that (i) Arch terminates the
Merger Agreement as a result of a material breach of a representation, warranty
or covenant by MobileMedia or if MMC or Arch terminates the Merger Agreement as
a result of the failure of the Confirmation Order to be entered on a timely
basis due to the failure of the creditors of MobileMedia entitled to vote on
the Amended Plan (other than Classes 7, 8 or 9 as defined in the "MobileMedia
Plan of Reorganization--The Amended Plan" below) to vote in favor of the
Amended Plan, or due to the withdrawal or amendment of the Amended Plan in a
manner adverse to Arch, the filing of any other plan of reorganization by
MobileMedia, or the modification or amendment of any material provision of the
Amended Plan, in each case without Arch's consent, or the confirmation of any
other plan of reorganization filed by any other person, (ii) MobileMedia sells
or otherwise transfers other than to Arch all or any substantial portion of its
assets as part of a sale approved pursuant to Section 363 of the Bankruptcy
Code (other than the MobileMedia Tower Site Sale) or (iii) MobileMedia has
terminated the Merger Agreement in connection with a MobileMedia Superior
Proposal (collectively, the "Breakup Events"), and at the time of any such
Breakup Event Arch is not in material breach of any material covenant or
obligation required to be performed by Arch thereunder at or before such time,
and is not in breach of its representations and warranties contained in the
Merger Agreement (except where the matters in respect of which such
representations and warranties are in breach would not in the aggregate have a
material adverse effect on Arch), then MobileMedia shall pay to Arch the Buyer
Breakup Fee as promptly as practicable after demand therefor (but in no event
later
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than the third business day thereafter). The sale of the MobileMedia Tower
Sites was completed on September 3, 1998.
In the event that MMC terminates the Merger Agreement as the result of Arch
being in material breach of its representations, warranties and covenants, the
failure of the Arch Board to recommend the MobileMedia Proposal and the Charter
Amendment Proposal as required by the Merger Agreement or the failure of the
MobileMedia Proposal and the Charter Amendment Proposal to be approved at the
Special Meeting, or Arch or MobileMedia terminates the Merger Agreement as a
result of Arch's failure to obtain the financing necessary to effect the
transactions contemplated by the Merger Agreement and the Amended Plan (when
all other conditions to Arch's obligations to close have been satisfied), and
at the time of such termination MobileMedia is not in material breach of any
material covenant or obligation required to be performed by MobileMedia
thereunder at or before such time and is not in breach of its representations
and warranties contained in the Merger Agreement (except where the matters in
respect of which such representations and warranties are in breach would not in
the aggregate have a material adverse effect on MobileMedia), then Arch shall
pay to MMC as promptly as practicable after demand therefor (but in no event
later than the third business day thereafter) the MobileMedia Breakup Fee in
the amount of $32.5 million.
The Breakup Fee provisions became effective on September 4, 1998, the date
the Initial Merger Order was entered by the Bankruptcy Court.
NASDAQ NATIONAL MARKET QUOTATION
The Merger Agreement provides that Arch shall use its best efforts to have
the shares of Arch Common Stock (including shares issuable upon conversion of
Class B Common Stock and upon exercise of the Arch Participation Warrants) to
be issued as contemplated in the Merger Agreement and the Amended Plan approved
for quotation on the NNM prior to the Effective Time.
DELIVERY OF FINANCIAL STATEMENTS
The Merger Agreement provides that as promptly as possible following the last
day of each month prior to the Effective Time, and in any event within 35 days
after the end of each such month, each of Arch and MobileMedia shall deliver to
the other its unaudited consolidated balance sheet and the related consolidated
statements of operations and cash flows for the one-month period then ended,
all certified by its chief financial officer to the effect that such interim
financial statements are prepared in accordance with GAAP (except as otherwise
described therein) on a consistent basis as with each party's audited financial
statements and fairly present the consolidated financial condition of each
party as of the date thereof and for the period covered thereby. As promptly as
possible following the last day of each fiscal quarter, and in any event within
45 days after the end of each such quarter, each of Arch and MobileMedia shall
deliver to the other its unaudited consolidated balance sheet and the related
unaudited consolidated statements of operations and cash flows for the year-to-
date period then ended, prepared in accordance with GAAP (except as otherwise
described therein) applied on a consistent basis, which comply as to form with
the applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto. MobileMedia shall also provide Arch with all
information (including financial statements and accountants' consents) as Arch
may reasonably request in connection with any offering of securities by Arch to
fund amounts payable under the Amended Plan or working capital needs of the
Combined Company.
FULL ACCESS
The Merger Agreement provides that Arch and MobileMedia shall each permit
representatives of the other to have full access (at all reasonable times, and
in a manner so as not to interfere with normal business operations) to all
premises, properties, financial and accounting records, contracts, other
records and documents, and personnel, of or pertaining to such party.
MobileMedia, upon Arch's request, is introducing Arch to
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MobileMedia's principal suppliers and employees to facilitate discussions
between such persons and Arch with regard to the conduct of the Surviving
Corporation's business.
STOCKHOLDER APPROVAL; SPECIAL MEETING
The Merger Agreement provides that Arch shall take all action reasonably
necessary in accordance with applicable law, the rules of the NNM, the Merger
Agreement and the Arch Certificate and Arch By-laws, to duly convene the
Special Meeting as promptly as practicable. Arch has agreed, subject to the
Arch Board's fiduciary obligations, to recommend that its stockholders vote in
favor of the MobileMedia Proposal and the Charter Amendment Proposal and to use
its best efforts to cause to be solicited proxies from stockholders of Arch to
be voted at the Special Meeting in favor of the MobileMedia Proposal and the
Charter Amendment Proposal and to take all other actions necessary or advisable
to secure the vote or consent of stockholders required to approve the
MobileMedia Proposal and the Charter Amendment Proposal.
PREPARATION OF PROXY STATEMENT/PROSPECTUS AND DISCLOSURE STATEMENT
Pursuant to the Merger Agreement, Arch has prepared and filed with the SEC a
Registration Statement on Form S-4 (the "Arch Stockholder Registration
Statement"), of which this Proxy Statement/Prospectus constitutes a part. Arch
is obligated to distribute this Proxy Statement/Prospectus for the Special
Meeting and obligates MMC to provide all information (including financial
information) as Arch may reasonably request in connection with this Proxy
Statement/Prospectus. The Merger Agreement requires Arch to provide MobileMedia
with all information (including financial information) as MobileMedia may
reasonably request for the disclosure statement MobileMedia is required to send
to its claimholders in connection with the approval of the Amended Plan. See
"--Rights Offering; Registration Statement".
APPLICATION OF MOBILEMEDIA TOWER SALE PROCEEDS
The Merger Agreement required MobileMedia to promptly pay the net proceeds
from the MobileMedia Tower Site Sale of certain transmission towers and
associated assets (the "MobileMedia Tower Sites") to Pinnacle Towers, Inc., the
Pre-Petition Agent, for the benefit of the Pre-Petition Lenders. On September
3, 1998 the MobileMedia Tower Site Sale was completed and the proceeds thereof
($170.0 million) were paid to the Pre-Petition Lenders.
FCC FILING
Pursuant to the Merger Agreement, on September 2, 1998 Arch and MobileMedia
jointly prepared and filed applications (the "FCC Applications") requesting (i)
the FCC's consent to the transfer of the control of the Debtor Authorizations
(as defined therein) to Arch, (ii) to the extent that such consent is required,
the FCC's consent to the transfer of control of Buyer Authorizations (as
defined therein) from Arch's current stockholders to Arch's stockholders
immediately following the consummation of the transactions contemplated hereby
in accordance with the Amended Plan, (iii) the termination of the hearing in WT
Docket No. 97-115, In the Matter of MobileMedia Corporation, et al. (the
"Hearing") without any further findings adverse to MobileMedia, or to the
Debtor Authorizations or otherwise materially restricting Arch's or
MobileMedia's ability to own or operate the properties, assets and businesses
of MobileMedia following the Effective Time, and (iv) the grant to Arch of
permanent license authority to operate those stations listed on Attachment C of
Public Notice DA 97-78 (January 13, 1997), as to which MobileMedia is currently
operating under a grant of interim operating authority, or in the alternative,
a determination by the FCC that as to such stations, Arch will enjoy protection
from, and rights of incumbency as to, any future Market Area Licensee (as
defined in the Merger Agreement) authorized to operate on the frequencies
licensed under interim operating authority. On October 5, 1998, a supplement
was filed to notify the FCC of certain modifications to the Amended Plan and
the Merger Agreement. The application was accepted for filing by public notice
dated October 15, 1998. On October 16, 1998, MobileMedia and Arch filed a joint
supplement of data requested by the staff of the Wireless Telecommunications
Bureau to assist in their evaluation of the application. On October 16, 1998,
MobileMedia and Arch filed a joint supplement of data
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requested by the staff of the Wireless Telecommunications Bureau to assist in
their evaluation of the application. On November 16, 1998, the FCC's Wireless
Telecommunications Bureau and the Pre-Petition Lenders filed comments generally
supporting grant of the application and Orbital Communications Corporation
submitted brief informal comments opposing the application's request to
terminate the hearing and to waive the application fees. MobileMedia, Arch and
the Pre-Petition Lenders each submitted timely reply comments on or before
November 27, 1998 and David A. Bayer submitted a brief informal response to
Orbital's letter. The designated pleading cycle on the Second Thursday
application is now closed. Arch and MobileMedia are obligated to cooperate in
providing all information and taking all steps necessary to expedite the
preparation, filing and prosecution of the FCC Applications with the FCC. In
the event any person or entity petitions the FCC to deny any FCC Application,
or petitions for any further proceedings in the Hearing, or otherwise
challenges the grant of any FCC Application before the FCC, or in the event the
FCC approves the transfer of control of the Debtor Authorizations (and, if
necessary, Arch Authorizations (as defined in the Merger Agreement)), and any
person requests reconsideration or judicial review of such order, then Arch and
MobileMedia shall take such reasonable actions as are necessary to oppose such
petition or challenge before the FCC or defend such action and the order of the
FCC before the judiciary diligently and in good faith; provided, however, that
nothing contained in the Merger Agreement shall be deemed to require Arch to
intervene in the Hearing or otherwise to defend MobileMedia as to any
allegations or proceedings relating to the allegations before the FCC in the
Hearing, except as reasonably required to support the transfer of control of
the Debtor Authorizations to Arch. MobileMedia is obligated to provide Arch
(whether or not Arch intervenes or otherwise participates in the Hearing) with
reasonable advance notice of, and a right to participate in, any meetings or
hearings relating to the FCC Applications or the Hearing, and a right to review
in advance any correspondence, agreements, or pleadings which may be submitted
by MobileMedia to the FCC or any other party to the Hearing with regard to the
FCC Applications or any proceedings relating to the Hearing. In each such case,
each party is required to bear its own costs and expenses of prosecuting such
application to a favorable conclusion, to the end that the transactions
contemplated by the Merger Agreement and the Amended Plan may be consummated.
The Merger Agreement provides that MobileMedia shall use its reasonable best
efforts to complete its voluntary program to inspect and audit its transmitter
site facilities and license data, and provide periodic updates on the progress
of such program to Arch.
INDEMNIFICATION; DIRECTORS AND OFFICERS INSURANCE
The Merger Agreement provides that, to the extent set forth in the Amended
Plan and only to such extent, all rights to indemnification and exculpation
from liabilities for acts or omissions occurring prior to the Effective Time
existing at the Effective Time in favor of the current or former directors or
officers of MobileMedia as provided in their respective charters or by-laws (or
comparable organization documents) and any indemnification agreements of
MobileMedia (including the indemnification agreement between MobileMedia and
Alvarez & Marsal, Inc. ("A&M"), executed in connection with the retention of
A&M as MobileMedia's crisis and restructuring consultants) shall survive the
Merger and shall continue in full force and effect in accordance with their
terms for a period of not less than three years from the Effective Time and the
obligations of MobileMedia in connection therewith shall be assumed by Arch. To
the extent set forth in the Amended Plan and only to such extent, Arch is
obligated to provide, or to cause the Surviving Corporation to provide,
MobileMedia's current directors and officers an insurance and indemnification
policy (including any fiduciary liability policy) that provides coverage with
respect to any claims made during the three-year period following the Effective
Time for events occurring prior to the Effective Time in an amount of $40.0
million or such lesser amount as can be purchased for $750,000.
STATE TAKEOVER LAWS
The Merger Agreement provides that if any "fair price", "business
combination" or "control share acquisition statute" or other similar statute or
regulation shall become applicable to the transactions contemplated hereby,
Arch and MobileMedia and their respective Boards of Directors shall use all
reasonable efforts to grant such approvals and take such actions as are
necessary so that such transactions may be
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consummated as promptly as practicable on the terms contemplated hereby and
shall otherwise act to minimize the effects of any state statute or regulation
affecting the transactions contemplated hereby.
EMPLOYEES
The Merger Agreement provides that after the Effective Time Arch shall
transfer MobileMedia employees to Arch's employee benefit plans as soon as
practicable, and prior to such transfer shall maintain benefits for such
employees comparable to the benefits currently in effect for employees of
MobileMedia. Arch has agreed to honor accrued vacation, holiday, sick and
personal days, maintain MobileMedia's 1998 Employee Incentive Plan and give
MobileMedia's employees credit under Arch's benefit plans for service with
MobileMedia, to the extent permitted by law.
EFFECTS OF ARCH'S RIGHTS AGREEMENT
The Merger Agreement provides that, except as contemplated by the Merger
Agreement, Arch is obligated not to (i) amend the Rights Agreement or (ii) take
any action with respect to, or make any determination under, the Rights
Agreement (including a redemption of the Preferred Rights) with the purpose of
facilitating an Arch Acquisition Proposal. Arch has amended the Rights
Agreement to increase the ownership threshold for W.R. Huff, Credit Suisse
First Boston Corporation, Whippoorwill and Northwestern Mutual thereunder to a
maximum of 33%, 26%, 27% and 15.5%, respectively. See "Description of Arch
Securities--Anti-Takeover Provisions--Rights Plan".
RIGHTS OFFERING; REGISTRATION STATEMENT
As specified in the Amended Plan, Arch will issue on a pro rata basis to the
holders of Allowed Class 6 Claims (with certain exceptions as specified in the
Amended Plan) Rights to purchase, for an aggregate consideration of $217.0
million, 108.5 million shares of Arch Common Stock at a subscription price of
$2.00 per share.
MobileMedia and Arch have entered into a Standby Purchase Agreement with each
Standby Purchaser, as described in "--Related Agreements--Standby Purchase
Agreements", and, prior to or at the Closing, Arch will execute and deliver to
each of the Standby Purchasers a Registration Rights Agreement.
Arch has filed with the SEC a separate Registration Statement under the
Securities Act to effect the Rights Offering as contemplated hereby and is
obligated to use its best efforts to have the Registration Statement declared
effective by the SEC as promptly as practicable. Arch is also obligated to take
any action required to be taken under state blue sky laws or other securities
laws in connection with the Rights Offering. MobileMedia has agreed to furnish
Arch with all information (including, without limitation, financial statements,
pro forma financial statements and projections) and shall take such other
action including obtaining any necessary consents from its accountants as Arch
may reasonably request in connection with the Registration Statement. Arch has
agreed to consult with MobileMedia and its counsel in connection with, and
shall permit MobileMedia and its counsel to participate in, the preparation of
the Registration Statement. Arch has agreed to cause the Rights to be issued as
specified in the Amended Plan as soon as practicable after the date the
Registration Statement becomes effective but not before approval of the
Disclosure Statement by the Bankruptcy Court.
Arch has agreed to promptly notify MobileMedia of the receipt of the comments
of the SEC and of any requests by the SEC for amendment or supplements to the
Registration Statement or for additional information, to promptly supply
MobileMedia with copies of all correspondence between it (or its
representatives) and the SEC (or its staff) with respect thereto, and to permit
counsel for MobileMedia to participate in any telephone conferences or meetings
with the staff of the SEC.
ARCH RIGHTS OFFERING; REGISTRATION STATEMENT
Arch will conduct the Arch Rights Offering pursuant to which it will
distribute to holders of Arch Common Stock and Series C Preferred Stock, as of
a record date to be determined and announced by the Arch Board,
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Arch Stockholder Rights to acquire up to 44,893,166 shares of Arch Common Stock
at a price of $2.00 per share and to the extent such Arch Stockholder Rights
are expired and unexercised, Arch will distribute the Arch Participation
Warrants to acquire an equivalent number of shares of Arch Common Stock at the
Warrant Exercise Price. The Arch Stockholder Rights are not transferable; the
Arch Participation Warrants are transferable.
REIMBURSEMENT OF ARCH'S EXPENSES
Pursuant to the Initial Merger Order, on September 10, 1998, MMC paid
$500,000 to Arch in partial reimbursement of Arch's expenses in connection with
the negotiation and execution of the Merger Agreement.
CONDITIONS
The Merger Agreement provides that the respective obligations of Arch and
MobileMedia to effect the Merger are subject to the satisfaction or waiver on
or prior to the Effective Time of each of the following conditions: (i) each of
the MobileMedia Proposal and the Charter Amendment Proposal shall have been
approved by the requisite vote of the stockholders of Arch in accordance with
the DGCL, the Arch Certificate and Arch By-laws; (ii) no statute, rule, order,
decree or regulation shall have been enacted or promulgated by any foreign or
domestic Governmental Entity which prohibits the consummation of the
transactions contemplated thereby and all consents, orders and approvals from
all Governmental Entities and other persons or entities identified by
MobileMedia and Arch shall have been obtained and shall be in effect; (iii)
there shall be no order or injunction of a foreign or United States federal or
state court or other governmental authority of competent jurisdiction in effect
precluding, restraining, enjoining or prohibiting consummation of the
transactions contemplated thereby; (iv) the expiration or early termination of
any waiting period under the HSR Act shall have occurred; (v) (1) the FCC shall
have issued an order (the "FCC Grant") both (i) consenting to the transfer of
the Debtor Authorizations and, to the extent requested by the Parties, to the
transfer of the Buyer Authorizations without any conditions which would have a
Buyer FCC Material Adverse Effect (as defined below in this clause (v)) or a
Debtor FCC Material Adverse Effect (as defined below in this clause (v)) and
(ii) terminating the Hearing without any findings or conclusions (x) which are
materially adverse to the Reorganized Debtors (as defined in the Merger
Agreement) or the Debtor Authorizations or which would have a material adverse
effect on the use of the Debtor Authorizations by the Reorganized Debtors
following the Closing, or (y) which impose any material monetary forfeiture on
the Debtors or the Reorganized Debtors or retain jurisdiction to impose any
material monetary forfeitures in the future on the Buyer or the Reorganized
Debtors based on the activities of the Debtors prior to the Closing, or (z)
which would have a Buyer FCC Material Adverse Effect or a Debtor FCC Material
Adverse Effect; and (2) either (i) the FCC Grant has become a final order (as
described below) or (ii)(a) any condition or conditions under the Bank Lending
Documents to the effect that the FCC Grant shall have become a final order (or
any condition or conditions therein having a substantially similar effect)
shall have been satisfied or, if not satisfied, the Bank Lenders shall have
waived any such condition or conditions (or any such condition or conditions
having a substantially similar effect) and (b) any condition or conditions
under the Other Lending Documents to the effect that the FCC Grant shall have
become a final order (or any condition or conditions therein having a
substantially similar effect) shall have been satisfied or, if not satisfied,
the Other Lenders shall have waived any such condition or conditions (or any
such condition or conditions having a substantially similar effect); in this
clause (v), (A) "Bank Lenders" shall mean, collectively, the Existing Lenders
(as defined in the Bank Commitment Letter) and the Credit Parties (as so
defined), as the same in each case shall exist at the Closing, (B) "Bank
Lending Documents" shall mean the Existing Credit Agreements (as defined in the
Bank Commitment Letter) as amended and modified by the Amendments (as so
defined), (C) "Bank Commitment Letter" shall mean the Commitment Letter dated
August 10, 1998 between API and the Credit Parties, including the Term Sheet
(as defined in such Bank Commitment Letter), copies of which has been delivered
to MobileMedia by Arch, as the same may be amended or modified, (D) "Other
Lenders" shall mean the Lenders (as defined in the Bridge Commitment Letter),
as the same shall exist at the Closing, or, if applicable, any other lenders
which lend funds to ACI (or Arch or any other Arch subsidiary) pursuant to a
Substitute Loan Agreement (as defined below), (E) "Other Lending Documents"
shall mean the Bridge Commitment Letter, Bridge Loan Agreement (as defined in
the Bridge Commitment Letter) or any other loan agreement, indenture or
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similar agreement (the "Substitute Loan Agreement") entered into by Arch or any
Arch subsidiary in lieu thereof for purposes of funding a material portion of
the consideration required by Arch for the transactions contemplated by this
Agreement, (F) "Bridge Commitment Letter" shall mean the Bridge Commitment
Letter, the Bridge Fee Letter and the Bridge Engagement Letter, each of even
date herewith, between Arch and ACI, on the one hand, and the Other Lenders, on
the other hand, a copy of which has been delivered by Arch to MobileMedia, as
the same may be amended or modified, (G) "Buyer FCC Material Adverse Effect"
shall mean a material adverse effect on the financial condition and operating
income of Arch and its subsidiaries, taken as a whole, excluding any effect
generally applicable to the economy or the industry in which Arch conducts its
business, and (H) "Debtor FCC Material Adverse Effect" shall mean a material
adverse effect on the financial condition and operating income of MobileMedia,
taken as a whole, excluding any effect generally applicable to the economy or
the industry in which MobileMedia conducts its business; for purposes of this
clause (v), the FCC Grant shall become a final order when no request for a stay
is pending, no stay is in effect and any deadline for filing such a request
that may be designated by statute or regulation is past; no petition for
rehearing or reconsideration or application for review is pending and the time
for filing any such petition or application is passed; the FCC does not have
the action or decision under reconsideration on its own motion and the time for
initiating any such reconsideration that may be designated by statute or rule
has passed; and no appeal is pending or in effect and any deadline for filing
any such appeal that may be designated by statute or rule has passed; deadline
for filing any such appeal that may be designated by statute or rule has
passed; (vi) each of the Registration Statement and the Arch Stockholder
Registration Statement shall have been declared effective and no stop order
with respect thereto shall be in effect; (vii) the shares of Arch Common Stock
(including all such shares issuable upon conversion of the Class B Common Stock
and upon exercise of the Arch Participation Warrants) to be issued as
contemplated by the Amended Plan and the Merger Agreement shall have been
approved for quotation on the NNM; (viii) (1) the Confirmation Order, in a form
reasonably satisfactory to each of the Parties, shall have been entered by the
Bankruptcy Court; and (2) either (i) the Confirmation Order has become a final
order (as defined below in this clause (viii)) or (ii) (a) any condition or
conditions under the Bank Lending Documents to the effect that the Confirmation
Order shall have become a final order (or any condition or conditions therein
having a substantially similar effect) shall have been satisfied or, if not
satisfied, the Bank Lenders shall have waived any such condition or conditions
(or any such condition or conditions having a substantially similar effect),
and (b) any condition or conditions under the Other Lending Documents to the
effect that the Confirmation Order shall have become a final order (or any
condition or conditions therein having a substantially similar effect) shall
have been satisfied or, if not satisfied, the Other Lenders shall have waived
any such condition or conditions (or any such condition or conditions having a
substantially similar effect); the Confirmation Order shall become a "final
order" when it shall have been in full force and effect for eleven days without
any stay or material modification or amendment thereof, and when the time to
appeal or petition for certiorari designated by statute or regulation has
expired and no appeal or petition for certiorari is pending or, if an appeal or
petition for certiorari has been timely filed or taken, the order or judgment
of the tribunal has been affirmed (or such appeal or petition has been
dismissed as moot) by the highest court (or other tribunal having appellate
jurisdiction over the order or judgment) to which the order was appealed or the
petition for certiorari has been denied, and the time to take any further
appeal or to seek further certiorari designated by statute or regulation has
expired; (ix) no action, suit or proceeding shall be pending or threatened by
any Governmental Entity challenging the validity of the actions taken by Arch,
MobileMedia or any of their respective subsidiaries in connection with the
confirmation of the Amended Plan; (x) the Effective Date shall have occurred;
and (xi) the shares of Arch Common Stock constituting the Creditor Stock Pool
to be issued as contemplated by the Merger Agreement shall be so issued and
distributed pursuant to the exemption from registration under the Securities
Act provided by Section 1145 of the Bankruptcy Code, shall be freely tradeable
by holders thereof who are not then affiliates of Arch or "underwriters" under
the Securities Act or 1145(b)(1) of the Bankruptcy Code and, except for
certificates issuable to such affiliates or underwriters, shall be represented
by certificates bearing no restrictive legend.
The obligation of Arch to consummate the transactions to be performed by Arch
in connection with the Closing is subject to the satisfaction, or waiver by
Arch, of the following conditions: (i) the representations and warranties of
MobileMedia contained in the Merger Agreement, which representations and
warranties shall be
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deemed not to include any qualification or limitation with respect to
materiality, shall be true and correct as of the Effective Time, with the same
effect as though such representations and warranties were made as of the
Effective Time, except where the matters in respect of which such
representations and warranties are not true and correct, result from actions
permitted by the Merger Agreement or would not in the aggregate have a material
adverse effect on the businesses, assets (including licenses, franchises and
other intangible assets), financial condition, operating income and prospects
of MobileMedia and its subsidiaries, taken as a whole; (ii) MobileMedia shall
have performed or complied with its material agreements and covenants required
to be performed or complied with under the Merger Agreement as of or prior to
the Effective Time in all material respects; (iii) there shall not have
occurred between the date of the Merger Agreement and the Effective Time an
event which has had a material adverse effect on the businesses, assets
(including licenses, franchises and other intangible assets), financial
condition, operating income and prospects of MobileMedia and its subsidiaries,
taken as a whole; (iv) MobileMedia shall have delivered to Arch a certificate
(without qualification as to knowledge or materiality or otherwise) to the
effect that the preceding conditions are satisfied in all respects; (v) after
each of the Registration Statement and the Arch Stockholder Registration
Statement has been declared effective, each of the Rights Offering and the Arch
Rights Offering shall have expired and Arch shall have received aggregate
proceeds therefrom (and/or from the closings contemplated by the Standby
Purchase Agreements) of $217.0 million; and (vi) the closing of the MobileMedia
Tower Site Sale shall have occurred and MobileMedia shall have applied at least
$165.0 million towards payment of the secured creditors of Parent and
MobileMedia in connection with the Amended Plan. On September 3, 1998 the sale
of the MobileMedia Tower Sites was completed and the proceeds thereon ($170.0
million) were paid to the Pre-Petition Lenders.
The obligation of MobileMedia to consummate the transactions to be performed
by it in connection with the Merger is subject to the satisfaction, or waiver
by MobileMedia, of the following conditions: (i) the representations and
warranties of Arch contained in the Merger Agreement, which representations and
warranties shall be deemed not to include any qualification or limitation with
respect to materiality, shall be true and correct as of the Effective Time,
with the same effect as though such representations and warranties were made as
of the Effective Time, except where the matters in respect of which such
representations and warranties are not true and correct, result from actions
permitted by the Merger Agreement or would not in the aggregate have a material
adverse effect on the businesses, assets (including licenses, franchises and
other intangible assets), financial condition, operating income and prospects
of Arch and its subsidiaries, taken as a whole; (ii) Arch shall have performed
or complied with its material agreements and covenants required to be performed
or complied with under the Merger Agreement as of or prior to the Closing in
all material respects; (iii) there shall not have occurred between the
Agreement Date and the Effective Time an event which has had material adverse
effect on the businesses, assets (including licenses, franchises and other
intangible assets), financial condition, operating income and prospects of Arch
and its subsidiaries, taken as a whole; (iv) the Preferred Rights shall not
have become nonredeemable, exercisable, distributed or triggered pursuant to
the terms of the Rights Agreement; and (v) Arch shall have delivered to
MobileMedia a certificate (without qualification as to knowledge or materiality
or otherwise) to the effect that such conditions are satisfied in all respects.
TERMINATION
The Merger Agreement provides that Arch and MobileMedia may terminate the
Merger Agreement prior to the Effective Time only as follows: (i) Arch and
MobileMedia may terminate the Merger Agreement by mutual written consent; (ii)
either Arch or MobileMedia may terminate the Merger Agreement by giving written
notice to the other in the event the other is in breach (A) of its
representations and warranties contained in the Merger Agreement, which
representations and warranties shall be deemed not to include any qualification
or limitation with respect to materiality, except where the matters in respect
of which such representations and warranties are in breach would not in the
aggregate have a material adverse effect on the business, assets (including
licenses, franchises and other intangible assets), financial condition,
operating income and prospects of such party and its respective subsidiaries,
taken as a whole, or (B) in respect of its material covenants or agreements
contained in the Merger Agreement, and in either case such breach is not
remedied within 20 business days of delivery of such written notice thereof
(which notice shall specify in reasonable detail the nature of such breach);
(iii) Arch may terminate the
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Merger Agreement by giving written notice to MobileMedia if the Merger shall
not have occurred on or before June 30, 1999 (unless the failure results
primarily from a breach by Arch of any representation, warranty or covenant
contained in the Merger Agreement); (iv) MobileMedia may terminate the Merger
Agreement by giving written notice to Arch if the Merger shall not have
occurred on or before June 30, 1999 (unless the failure results primarily from
a breach by MobileMedia of any representation, warranty or covenant contained
in the Merger Agreement); (v) MobileMedia may terminate the Merger Agreement in
connection with a MobileMedia Superior Proposal by giving written notice to
Arch, provided that on or before such termination MobileMedia shall have paid
to Arch the applicable Buyer Breakup Fee; (vi) MobileMedia may terminate the
Merger Agreement by giving written notice to Arch if (A) the Arch Board does
not issue the Arch Recommendation prior to the Special Meeting or withdraws or
amends in a manner adverse to MobileMedia the Arch Recommendation or otherwise
materially breaches its obligations with respect to soliciting proxies from its
stockholders for approval of the MobileMedia Proposal and the Charter Amendment
Proposal at the Special Meeting or (B) at the Special Meeting the MobileMedia
Proposal or the Charter Amendment Proposal is not approved by the requisite
vote of Arch Stockholders; (vii) Arch may terminate the Merger Agreement by
giving written notice to MobileMedia if MobileMedia or any of its subsidiaries
files either an amendment to the Amended Plan or any other plan of
reorganization in a manner that is in violation of the Merger Agreement; and
(viii) Arch may terminate the Merger Agreement by giving notice to MobileMedia
if (A) MobileMedia takes (or omits to take) any action that would constitute a
material breach of any of its covenants or agreements but for exceptions to its
obligations pursuant to Bankruptcy-Related Requirements, and (B) such action is
not remedied within 20 business days of delivery of written notice thereof
(which notice shall specify in reasonable detail the nature of such action).
Parent has agreed for itself and MMC not to exercise any right to terminate the
Merger Agreement without the prior written consent of the Unsecured Creditors
Committee.
If any party terminates the Merger Agreement, all obligations of Arch and
MobileMedia thereunder shall generally terminate without any liability of any
party to any other party, except for any liability of any party for willful or
intentional breaches of the Merger Agreement, and except for MobileMedia's
obligation to pay the Buyer Breakup Fee, if applicable, and Arch's obligation
to pay the MobileMedia Breakup Fee, if applicable, which shall survive any such
termination.
AMENDMENT AND WAIVER
Arch, Parent and MMC may mutually amend any provision of the Merger Agreement
(in certain cases Parent and MMC may do so only with the consent of the
Unsecured Creditors Committee or pursuant to an order of the Bankruptcy Court).
The Merger Agreement provides that no waiver by any party to the Merger
Agreement of any default, misrepresentation or breach of warranty or covenant
thereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation or breach of warranty or covenant
thereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
MMC, on behalf of itself, Parent and its subsidiaries, has agreed not to make
any material changes, exercise any rights they may have to terminate the Merger
Agreement or take any action which might result in the termination of the
Merger Agreement without the prior written consent of the Unsecured Creditors
Committee or pursuant to an order of the Bankruptcy Court. MMC has further
agreed not to exercise its rights to respond to or negotiate acquisition
proposals received from third parties without advising and consulting with the
Unsecured Creditors Committee. MMC also agreed that the Unsecured Creditors
Committee could request MMC to exercise its right to terminate the Merger
Agreement, and if MMC does not do so, the Unsecured Creditors Committee may
seek an order of the Bankruptcy Court to do so.
The obligations of the Standby Purchasers under the Standby Purchaser
Agreements are conditioned upon any amendments or modifications to the Merger
Agreement or exhibits or schedules thereto, or any waivers or consents
delivered by Arch or MMC (with certain exceptions), being reasonably
satisfactory to the Standby Purchasers.
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RELATED AGREEMENTS
The agreements summarized below are related to the Merger Agreement and the
transactions contemplated thereby. See also "The MobileMedia Plan of
Reorganization".
STANDBY PURCHASE AGREEMENTS
Certain unsecured creditors of MobileMedia, comprised of W.R. Huff, as agent
for various discretionary accounts and affiliates, Northwestern Mutual, acting
for itself and its Group Annuity Separate Account, the Northwestern Mutual
Series Fund, Inc., Credit Suisse First Boston Corporation ("CS First Boston")
and Whippoorwill as agent for various discretionary accounts, have each
entered into the Standby Purchase Agreements pursuant to which they have
agreed to purchase shares of Arch Combined Common Stock at a price of $2.00
per share, to the extent that any of the Rights are not otherwise exercised.
Each Standby Purchaser is obligated to exercise a portion of the Rights and
obligations of the Standby Purchasers under the Standby Purchase Agreements
are several and not joint. Each of the Standby Purchasers may reduce its
commitment to purchase Arch Combined Common Stock by an amount (each a
"Standby Maximum Reduction Number") equal to the product of (i) the aggregate
consideration paid upon the exercise of Arch Stockholder Rights and (ii) a
fraction, the numerator of which is the dollar amount of the total commitment
of such individual Standby Purchaser and the denominator of which is $217.0
million. In addition, CS First Boston has an obligation to reduce its
commitment to purchase shares underlying unexercised Rights up to the lesser
of (i) $10.0 million and (ii) its Standby Maximum Reduction Number. The
Standby Purchasers have 10 business days, after receipt of notification from
Arch as to the exercise of the Arch Stockholder Rights, to elect to reduce
their commitment.
The Standby Purchase Agreements permit the Standby Purchasers to acquire or
dispose of Rights, as well as the underlying claims in respect of which the
Rights are distributed. However, any such acquisition or disposition will not
relieve the Standby Purchaser's commitment to exercise Rights to the extent
they are not exercised by third parties.
The Standby Purchasers will be entitled to deliver the subscription price of
the Rights on the Effective Date, following notification as to the number of
Rights exercised by third parties. Other holders of Rights will be required to
exercise them, if at all, on a date selected by Arch and MobileMedia on or
prior to the later of (i) the Confirmation Date or (ii) the date on which the
FCC Grant is issued, which date must be at least 15 days after the date on
which all conditions to closing (other than conditions relating to the
finality of the FCC Grant and the Confirmation Order and certain other
conditions which by their terms cannot be satisfied until the Effective Time)
have been satisfied or, if legally permissible, waived.
The commitment of each Standby Purchaser is subject to a number of
conditions, including: (i) that the Confirmation Order, in a form reasonably
satisfactory to the Standby Purchaser shall have been entered and shall have
become a final order, provided that one Standby Purchaser may not assert this
condition if all other Standby Purchasers, acting in good faith, shall have
waived the requirement of finality (with CS First Boston having waived such
condition of finality); (ii) the satisfaction or, with the written consent of
the Standby Purchaser, the waiver of all conditions precedent to the
obligations of each of the parties to the Merger Agreement and all conditions
precedent to the effectiveness of the Plan, provided, that the conditions
contained in Sections 5.1(e) and (h), Sections 5.2(a), (b), (c), (d) and (e)
and Sections 5.3(a), (b), (c) and (e) may be waived without the written
consent of the Standby Purchaser; (iii) the Shelf Registration Statement
covering the resale of Arch Common Stock, Class B Common Stock or Arch
Participation Warrants by the Standby Purchaser shall be effective; (iv) Arch
shall have executed the Standby Purchaser Registration Rights Agreement (as
defined herein); (v) any and all amendments or modifications to the Merger
Agreement or any consents or waivers delivered by Arch or MobileMedia to the
other under the Merger Agreement (other than consents under Section 4.5 of the
Merger Agreement or waiver of the conditions specified in clause (ii) above),
shall have been satisfactory to the Standby Purchaser; (vi) the
representations and warranties made in the Merger Agreement by Arch and
MobileMedia shall have been accurate; (vii) Arch shall have obtained the
necessary financing to consummate the Merger (other than as a result of the
Standby Purchaser not fulfilling its commitment) on certain
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minimum terms; (viii) each other Standby Purchaser shall have fulfilled its
commitment; (ix) the Rights, shares of Arch Common Stock, shares of Class B
Common Stock or the Arch Participation Warrants shall be issued and
distributed pursuant to an exemption from registration under the Securities
Act pursuant to Section 1145 of the Bankruptcy Code or shall have been
registered under the Securities Act, such Registration Statement shall have
been declared effective and no stop order shall be in effect; (x) the FCC
Grant shall have been issued by the FCC and it shall have become a final
order, provided that a Standby Purchaser may not assert this condition if each
other Standby Purchaser, acting in good faith, shall have waived this
provision (with CS First Boston having waived such condition of finality) or
if the reason that the FCC Grant shall not have become a final order is a
result of action taken by any present or former officer of MobileMedia
considered or determined by the FCC to be an alleged or an actual wrongdoer
for purposes of the FCC proceeding; and (xi) any applicable waiting periods
under the HSR Act shall have expired or been terminated. The obligation of the
Standby Purchasers other than CS First Boston is also subject to the condition
that there shall not have occurred between June 30, 1998 and the Confirmation
Date (and between June 30, 1998 and the Effective Date if the Effective Date
is more than 90 days after the Confirmation Date), (i) any event or events
(other than those that affecting generally the economy or the industry in
which Arch and MobileMedia conduct their respective businesses) which has had
or would have a material adverse effect on the business, assets (including
licenses, franchises and other intangible assets), financial condition,
operating income or prospects of the Combined Company, (ii) any event or
events involving a regulatory or statutory change and effecting generally the
industry in which Arch and MobileMedia conduct their respective businesses
which would materially and adversely affect the ability of the Combined
Company to operate its business, or (iii) an event or events affecting
generally the industry in which Arch and MobileMedia conduct their respective
businesses but would not materially and adversely affect the ability of
Combined Company to operate its business (except that no single Standby
Purchaser having the benefit of this condition may assert such condition if
each of the other Standby Purchasers (other than CS First Boston) shall have
waived this condition).
In addition, Arch and MobileMedia made certain representations and
warranties about itself to the Standby Purchasers, including (i) due
organization, valid existence and good standing, with all requisite corporate
power and authority to perform its obligations under such Standby Purchase
Agreement, (ii) subject to stockholder approval (in the case of Arch) and
Bankruptcy Court approval (in the case of MobileMedia) the execution, delivery
and performance of such Standby Purchase Agreement being duly and validly
authorized by all necessary corporate action, (iii) the validity and
enforceability of such Standby Purchase Agreement as against Arch and
MobileMedia, respectively, (iv) the compliance of the transactions
contemplated by the Standby Purchase Agreements with their respective
certificates of incorporation and by laws, certain contracts and applicable
laws, (v) the accuracy of the representations and warranties made by Arch and
MobileMedia, respectively, in the Merger Agreement, (vi) the accuracy of
copies of certain agreements given to each Standby Purchaser, (vii) the
accuracy of the information provided by each of Arch and MobileMedia, (ix) the
absence of any Buyer Material Adverse Effect or Company Material Adverse
Effect (as defined therein), and (x) the due authorization, valid issuance,
nonassessability and absence of preemptive rights with respect to shares of
Arch issued in the transaction. Each Standby Purchaser represents (i) as to
its organization, qualification, corporate power and authority to enter into
and perform its obligations under the applicable Standby Purchase Agreement;
(ii) the taking of all required corporate action on the part of the Standby
Purchaser, (iii) the validity and enforceability of the applicable Standby
Purchase Agreement, (iv) the compliance of the transactions contemplated by
the applicable Standby Purchase Agreement with its organizational documents,
certain contracts and applicable laws, (v) the accuracy of certain information
provided by the Standby Purchaser to Arch and MobileMedia, and (vi) the
aggregate holdings of each Standby Purchaser of debt securities of
MobileMedia.
Each of Arch and MobileMedia also covenant to provide the Unsecured Creditor
Committee notices of all information to be made available to Arch by the
Unsecured Creditor Committee. The Unsecured Creditor Committee has undertaken
with each Standby Purchaser to provide copies of all notices, documents or
information provided to it by Arch, Parent or MobileMedia and to consult with
such Standby Purchaser prior to delivering any consent or exercising any right
of the Unsecured Creditor Committee pursuant to the Merger Agreement or under
the Amended Plan. Each Standby Purchaser, and/or its counsel, has the right to
review and
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comment on the registration statement to be filed on behalf of the Standby
Purchaser. Arch has agreed not to take certain actions (including amending the
Arch Certificate, issuing Arch securities and incurring additional debt)
without written consent from the Standby Purchasers. Arch has undertaken,
should the transaction close, to reimburse reasonable fees incurred by the
Standby Purchasers in negotiating and documenting this transaction, up to a
maximum of $100,000. In addition, each Standby Purchaser covenants not to
engage in any transactions that would have an adverse effect on the market
share price of Arch Common Stock and commits to vote for acceptance of the
Amended Plan unsecured claims held by it. Each Standby Purchaser covenants not
to solicit, initiate, engage or participate in, or encourage negotiations or
discussions concerning any proposal to acquire MobileMedia other than the
Merger Agreement and the Amended Plan. Each Standby Purchaser also covenants
not to provide financing for any merger or plan of reorganization other than
the Merger Agreement and the Amended Plan.
In consideration of their purchase commitments contained in the Standby
Purchase Agreements, the Standby Purchasers will be granted Arch Participation
Warrants to purchase shares of Arch Common Stock which will constitute
approximately 1.9% of Arch Common Stock immediately following the Merger (on a
fully diluted basis). The Standby Purchase Agreements require Arch to nominate
one designee of W.R. Huff and one designee of Whippoorwill to be elected as
directors of Arch for so long as W.R. Huff or Whippoorwill, as the case may be,
holds securities of Arch having at least 10% of the combined voting power of
all outstanding securities of Arch (5% in the case of the initial renomination
of such nominees).
Arch will enter into a registration rights agreement with the Standby
Purchasers (the "Standby Purchaser Registration Rights Agreement"). See "--
Registration Rights Agreements".
In the event that the purchases by the Standby Purchasers would cause the
Standby Purchasers together with any other person or entity that may be an
associate or affiliate thereof, in the aggregate, to hold more than 49.0% of
the securities of Arch entitled to vote in the election of directors and
outstanding at the Effective Time, the Standby Purchasers will receive instead,
proportionate to their obligations to purchase Rights and in lieu of shares of
Arch Common Stock, shares of Class B Common Stock such that the Standby
Purchasers, in the aggregate, will hold no more than 49.0% of the outstanding
shares of capital stock of Arch generally entitled to vote in the election of
directors or more than 49.0% of the voting power of the outstanding voting
shares upon consummation of the Merger. The Class B Common Stock will be
identical in all respects to Arch Common Stock, except that holders of Class B
Common Stock will not be entitled to vote in the election of directors and will
be entitled to 1/100th of a vote per share with respect to all other matters.
See "Description of Arch Securities--Class B Common Stock".
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The several commitments of the Standby Purchasers to purchase Rights, and
their entitlement to receive Arch Participation Warrants are as follows:
<TABLE>
<CAPTION>
COMMITMENT
RIGHTS AMOUNT NUMBER OF
EXERCISE RELATING TO ARCH
NAME AND ADDRESS OF STANDBY COMMITMENT UNEXERCISED TOTAL PARTICIPATION
PURCHASER AMOUNT RIGHTS COMMITMENT WARRANTS
- --------------------------- ---------- ----------- ---------- -------------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
W.R. Huff Asset Management Co.,
L.L.C., as agent for various
discretionary accounts and
affiliates.................... $ 39.27 $ 35.80 $75.07 1,704,006
67 Park Place, 9th Floor
Morristown, New Jersey 07960
The Northwestern Mutual Life
Insurance Company............. $ 10.95 $ 9.97 $20.92 474,861
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
The Northwestern Mutual Life
Insurance Company,
for its General Annuity
Separate Account.............. $ 2.65 $ 2.42 $ 5.07 115,084
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Northwestern Mutual Series
Fund, Inc.--
High Yield Bond Portfolio..... $ .75 $ .69 $ 1.44 32,686
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Credit Suisse First Boston
Corporation................... $ 29.48 $ 26.88 $56.36 29,309
11 Madison Avenue, 4th Floor
New York, New York 10010
Whippoorwill Associates, Inc.,
as general partner of and/or
agent for various
discretionary accounts........ $ 30.42 $ 27.72 $58.14 1,319,713
11 Martine Avenue
White Plains, New York 10606
------- ------- ------ ---------
Total.......................... $113.52 $103.48 $217.0 3,675,659
======= ======= ====== =========
</TABLE>
None of the Standby Purchasers is required to exercise more than the number
of Rights that can be exercised for the amount set forth opposite its name
above (in the column entitled Total Commitment).
REGISTRATION RIGHTS AGREEMENTS
At the Effective Time, Arch will enter into the Standby Purchaser
Registration Rights Agreement and, upon the request of any stockholder who as a
result of the Merger and/or the Amended Plan becomes the beneficial owner of at
least 10% of the outstanding Arch Common Stock (a "10% Stockholder"), will
enter into a separate registration rights agreement with such 10% Stockholder
(the "10% Stockholder Registration Rights Agreement").
Pursuant to the Standby Purchaser Registration Rights Agreement, Arch will be
required to file and have declared effective, by the Effective Time, a shelf
registration statement relating to resales of Arch Common Stock, the Arch
Participation Warrants and the Arch Common Stock issuable upon exercise of the
Arch Participation Warrants, the Class B Common Stock and the Arch Common Stock
issuable upon conversion of the Class B Common Stock owned by such Standby
Purchasers or acquired after the Effective Time and securities, if any,
received from Arch in respect of the foregoing by reason of stock dividends or
similar matters (the "Registrable Securities"). Arch will be required to use
its reasonable best efforts to keep such shelf registration statement
continuously effective until the earliest of (a) March 1, 2003, (b) the date on
which all Registrable Securities covered by the shelf registration statement
have been sold thereunder and (c) the date on which all Registrable Securities
covered by the shelf registration statement have otherwise ceased to be
Registrable Securities under the Standby Purchaser Registration Rights
Agreement (i.e., the date all Registrable Securities may be sold publicly
without either (i) registration under the Securities Act or (ii) compliance
with any restrictions under Rule 144 of the Securities Act).
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Each Standby Purchaser will also have demand registration rights which may be
exercised no more than twice. In addition, Arch will provide Standby Purchasers
"piggyback" registration rights with respect to other offerings filed by Arch.
The 10% Stockholder Registration Rights Agreement provides for similar
registration rights and indemnification provisions, except that Arch need not
file a shelf registration except upon the written request of a 10% Stockholder.
Fees and expenses incurred in connection with the filing of any registration
statements (other than selling commissions, underwriting fees, discounts and
stock transfer taxes applicable to the sale of the Registrable Securities) will
be borne by Arch. These registration rights agreements will also provide for
customary indemnification obligations on the part of Arch.
WARRANT AGREEMENT
Arch will enter into a warrant agreement (the "Arch Participation Warrant
Agreement") at the Effective Time with The Bank of New York, as warrant agent,
with respect to the Arch Participation Warrants. The Arch Participation Warrant
Agreement will govern the terms relating to the issuance, form, registration,
exercise, transfer and exchange of Arch Participation Warrants, as well as
certain adjustment provisions. Each Arch Participation Warrant will represent
the right to purchase one share of Arch Common Stock at a fixed exercise price
equal to $2.00 plus an amount to reflect compounding, from the Effective Date
until September 1, 2001, at a 20% per annum internal rate of return. See
"Prospectus Summary--The Merger and the Reorganization--The Proposed
Transaction".
Arch will be required to maintain an effective registration statement
registering the issuance and/or resale of Arch Common Stock upon exercise of
the Arch Participation Warrants.
RELATED MATTERS AFTER THE MERGER
At the Effective Time, the Certificate of Incorporation and By-Laws of the
Merger Subsidiary, as in effect immediately prior to the Effective Time, will
be the Certificate of Incorporation and By-Laws of the Surviving Corporation
and will continue to be the Surviving Corporation's Certificate of
Incorporation and By-Laws until amended as provided therein or by applicable
law.
The directors and officers of the Merger Subsidiary immediately prior to the
Effective Time will be the directors and officers of the Surviving Corporation,
and will hold office in accordance with the Certificate of Incorporation and
By-Laws of the Surviving Corporation.
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THE MOBILEMEDIA PLAN OF REORGANIZATION
The following is a brief summary of certain provisions of the Amended Plan,
a copy of which is attached as Annex C to this Proxy Statement/Prospectus and
incorporated herein by reference in its entirety. Although this section
summarizes the material terms of the Amended Plan, such summary is qualified
in its entirety by reference to the Amended Plan. Stockholders of Arch are
urged to read the Amended Plan in its entirety for a more complete description
of the Amended Plan. Defined terms used herein but not otherwise defined shall
have the meaning ascribed to them in the Amended Plan.
THE AMENDED PLAN
The Debtors filed the Amended Plan with the Bankruptcy Court on December 2,
1998. The Amended Plan provides for the merger of MMC with and into the Merger
Subsidiary. In connection with the Amended Plan, Arch has agreed to (i) pay to
certain secured creditors of Parent and MobileMedia $479.0 million in cash
(and reimburse certain of their legal and other fees up to $1.0 million in the
aggregate) and to issue to the Unsecured Creditors 14,344,969 shares of Arch
Common Stock, constituting the Creditor Stock Pool, (ii) to assume and pay all
priority and administrative claims of MobileMedia and (iii) repay amounts due
under the DIP Credit Agreement. In connection with the Amended Plan, Arch will
conduct the Rights Offering. The Amended Plan provides that the Effective Date
shall be that date that is 10 business days after the date that the
Confirmation Order has been entered and 10 days have passed without the
Confirmation Order being reversed, modified, vacated or stayed and each of the
conditions to the consummation of the Merger is satisfied or waived, if
legally permissible, other than the condition relating to the confirmation of
the Amended Plan.
The Amended Plan provides for the treatment of all claims against and equity
interests in MobileMedia. The Amended Plan provides that holders of pre-
petition claims which are entitled to priority in accordance with applicable
provisions of the Bankruptcy Code will be paid in full in cash on the
Effective Date or be unimpaired under the Bankruptcy Code and that all post-
petition claims against MobileMedia which are incurred in the ordinary course
of business or as authorized by the Bankruptcy Court will either be paid in
full in cash on the Effective Date or in accordance with the terms applicable
to such post-petition claims. The Amended Plan requires Arch to make
sufficient funds available to pay all such priority and administrative claims,
provided, however, that if the total required to be paid on account of
priority tax claims, accrued and unpaid professional fees, cure payments due
with respect to assumed executory contracts, bonus payments for employees and
professionals, claims of indenture trustees, amounts required to pay certain
fees and expenses of the secured creditors of MobileMedia and amounts required
to pay the Dial Page Notes, together with the costs and expenses of the
Standby Purchasers in accordance with the Standby Purchase Agreements, exceeds
$34.0 million, the number of shares of Arch Common Stock constituting the
Creditor Stock Pool will be reduced by a number of shares equal to the amount
by which such claims exceed $34.0 million divided by $25.315. Arch has also
agreed to pay in cash on the Effective Date loans outstanding under the DIP
Credit Agreement. The Merger Agreement provides that as of the Effective Date
the amount of loans outstanding under the DIP Credit Agreement shall not
exceed $20.0 million prior to December 31, 1998, or $30.0 million between
January 1, 1999 and June 30, 1999, in each case plus amounts borrowed under
the DIP Credit Agreement for N-PCS construction incurred or committed by
MobileMedia as of the date of the Merger Agreement or otherwise approved by
Arch.
The Amended Plan classifies all holders of pre-petition claims against, and
equity interests in, MobileMedia into nine classes.
1. Class 1 claims consist of claims entitled to priority under Section
507(a)(3) of the Bankruptcy Code (unpaid claims for wages, salaries or
commissions up to an amount not in excess of $4,000 earned within ninety
(90) days of the commencement of the Insolvency Proceedings), 507(a)(4) of
the Bankruptcy Code (claims for contributions to employee benefits plans
subject to a formula limitation) and 507(a)(6) of the Bankruptcy Code
(claims for consumer deposits in an amount not in excess of $1,800). These
claims have been estimated by MobileMedia to total $150,000. The Amended
Plan provides that all such claims will be paid in cash on the Effective
Date. Arch is obligated to provide MobileMedia with the cash needed to pay
these claims.
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2. Class 2 claims consist of miscellaneous secured claims. MobileMedia
estimates that the total of such claims is $500,000. The Amended Plan
provides that all such secured claims will be paid in accordance with their
terms or will be unimpaired under the Amended Plan.
3. Class 3 claims consist of customer refund claims not in Class 1 or
Class 2. MobileMedia estimates that these claims total $0. The Amended Plan
provides that all such customer refund claims will be paid in accordance
with their terms.
4. Class 4 claims consist of claims arising under the MobileMedia 1995
Credit Agreement. As of the Petition Date, MobileMedia was indebted
thereunder in the principal amount of $649.0 million. During the pendency
of the Insolvency Proceedings, MobileMedia has paid the lenders thereunder
adequate protection payments equal to the amount of interest due at the
non-default rate. The Amended Plan provides that the banks will be paid
100% of the principal amount of their claims in full in cash on the
Effective Date, together with certain fees and expenses and any unpaid
accrued interest thereon up to the Effective Date at the non-default rate.
On September 3, 1998, MobileMedia paid to the holders of the Class 4 claims
all the proceeds realized from the MobileMedia Tower Site Sale ($170.0
million) pursuant to the Purchase Agreement between MobileMedia and
Pinnacle (the "MobileMedia Tower Sale Agreement"). Arch is obligated to pay
the balance of the Class 4 claims ($479.0 million) in cash on the Effective
Date.
5. Class 5 consists of claims arising under the Dial Page Notes. The
outstanding principal balance of the Dial Page Notes, together with
interest accrued thereon through the Effective Date and the reasonable fees
and expenses of the Indenture Trustee for the Dial Page Notes, will be paid
in full in cash on the Effective Date. MobileMedia estimates that these
claims will total approximately $2.1 million as of September 30, 1998. Arch
is obligated to provide the cash needed to pay the Dial Page Notes.
6. Class 6 claims consist of all pre-petition unsecured claims which are
not entitled to priority and not included in any other class. MobileMedia
estimates that the total amount of Class 6 claims that will be allowed is
approximately $464.0 million. A pro rata share of the Creditor Stock Pool
and the Rights will be distributed to Class 6 creditors in full
satisfaction of their claims, except that any Class 6 creditor whose claim
is not allowed as of the date the Rights Offering is commenced or on the
date of a supplemental Rights distribution, and who later has a Class 6
claim allowed, will be paid in cash the value of the Rights that the
creditor would have received had its claim been allowed as of the date that
the Rights Offering was commenced (the "Cash Equivalent"). The funds to
make such cash payments will be obtained from the sale of Rights which are
reserved from distribution to Class 6 creditors on account of disputed
claims as of the date the Rights Offering is commenced, and which remain
undistributed immediately after the date the Amended Plan is confirmed. If
the proceeds from the sale of the Rights which are reserved from
distribution are insufficient to pay the Cash Equivalent because Class 6
claims are allowed for more than the estimated amount, Arch is obligated to
pay the Cash Equivalent out of its own funds.
7. Class 7 claims consist of claims of holders of MobileMedia promissory
notes based on alleged violations of applicable securities laws and any
claims by officers or directors or underwriters for indemnification related
thereto. The Amended Plan provides that no payment will be made with
respect to Class 7 claims.
8. Class 8 claims consist of all equity interests in Parent and all
claims related to alleged violations of applicable securities laws and
various claims for indemnification by any officer, director, underwriter,
employee or professional related thereto. The Amended Plan provides that
the holders of equity interests in Parent, any related claims thereto and
any claims for indemnification will receive no distribution under the
Amended Plan.
9. Class 9 consists of any claim by Parent, MMC or any of MMC's
subsidiaries against one another and the equity interests held by Parent,
MMC or MMC's subsidiaries in one another. The Amended Plan provides that
such claims and equity interests are cancelled, except that MMC will retain
its shareholder interest in MobileComm.
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EXECUTORY CONTRACTS
The Amended Plan provides that all executory contracts of MobileMedia are to
be assumed by the Surviving Corporation except for those which are the subject
of a specific motion to reject and those which will be set forth in a schedule
to the Amended Plan of executory contracts to be rejected. All the defaults
under contracts which are to be assumed must be cured on the Effective Date.
MobileMedia currently estimates that the cost to cure defaults under contracts
to be assumed totals approximately $3.0 million. Arch will make the funds
available to pay cure payments.
IMPLEMENTATION OF PLAN
The Amended Plan contemplates that the Standby Purchasers, in accordance with
the terms of each Standby Purchaser's commitment, will purchase shares of Arch
Combined Common Stock to the extent that any of the Rights are not exercised by
the holders of Class 6 claims (subject to reduction in certain circumstances).
In addition, Arch will distribute Arch Participation Warrants to the Standby
Purchasers. If, as a result of the exercise of Rights and purchase of shares,
any "person" or "group" or the Standby Purchasers, together with any
affiliates, collectively would in the aggregate beneficially own, within the
meaning of Section 13(d)(3) of the Exchange Act, more than 49.0% of the capital
stock of Arch outstanding on the Effective Date or more than 49.0% of the total
voting power of the capital stock of Arch, then the person or group, or the
Standby Purchasers will receive shares of Class B Common Stock in lieu of Arch
Common Stock such that the person or group, or the Standby Purchasers in the
aggregate will not beneficially own more than 49.0% of the shares of Arch
capital stock generally entitled to vote in the election of directors and not
more than 49.0% of the total voting power of all the Arch capital stock
outstanding on the Effective Date.
The Amended Plan further provides that following the issuance of the
Confirmation Order, but prior to the Effective Date the current officers and
directors of MobileMedia will continue to be responsible for the operations of
MobileMedia and that the Unsecured Creditors Committee will continue to exist.
On the Effective Date, the Unsecured Creditors Committee will cease to exist,
and the officers and directors of Merger Subsidiary will become the officers
and directors of the Surviving Corporation. Also on the Effective Date, Parent
will contribute its assets to MMC and will then be dissolved, all subsidiaries
of MobileMedia will be merged into a subsidiary of the Surviving Corporation,
and all FCC licenses to operate MobileMedia's wireless network will be conveyed
to a wholly owned limited liability company of MMC.
The Unsecured Creditors Committee, prior to its expiration, will appoint a
person, subject to Arch's and MobileMedia's consent, who will be responsible
for winding up the bankruptcy estate of MobileMedia. Arch has agreed to fund
the costs of such estate representative according to a budget which shall be
mutually agreed upon by Arch and such estate representative. The estate
representative will have the power to object to claims and to resolve all such
objections. Any causes of action of MobileMedia arising under the Bankruptcy
Code or otherwise are preserved for the benefit of the Combined Company, to be
pursued or not in the discretion of the Combined Company.
The Amended Plan provides that Class 6 creditors will receive their shares of
the Arch Combined Common Stock through the exercise of the Rights and the
purchase of Arch Combined Common Stock from Arch upon exercise thereof and from
the Exchange Agent through distribution of Arch Combined Common Stock
comprising the Creditor Stock Pool. The Creditor Stock Pool will be distributed
on the Effective Date, or as soon thereafter as is practical. To the extent
that there are disputed claims in Class 6 as of the Effective Date, the
Exchange Agent will reserve from distribution from the Creditor Stock Pool
sufficient shares of Arch Common Stock so that if a holder of a disputed claim
has its claim allowed for the full amount asserted, such holder will receive
the same distribution it would have received had its claim been allowed as of
the first distribution from the Creditor Stock Pool. When a disputed claim is
resolved, and to the extent such claim is allowed, the holder of such claim
will receive a distribution of Arch Common Stock equal to what the claimant
would have received had the claim been allowed when the original distribution
of Arch Common Stock was made by the Exchange Agent and a cash payment in
respect of the Rights the holder of such claim would have been entitled to
receive had such claim been
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allowed when the Rights were distributed. Also included in Class 6 are claims
arising from the rejection of contracts and leases. If the reserve established
for such claims is inadequate, there is a possibility that there will be
insufficient shares in the Creditor Stock Pool to make the pro rata
distribution to all holders of Class 6 claims whose claims are allowed after
the Effective Time. When all Class 6 claims have been resolved, the Exchange
Agent will make a final distribution of then remaining shares in the Creditor
Stock Pool on a pro rata basis. If, at the time of the final distribution,
there are less than 10,000 shares in the Creditor Stock Pool, such shares will
not be distributed and instead will be delivered to Arch and become treasury
shares.
CONDITIONS TO EFFECTIVENESS OF THE PLAN
The Bankruptcy Court will schedule a hearing to consider confirmation of the
Amended Plan. The list that follows is qualified by reference to the Amended
Plan and the Merger Agreement. The conditions to the Effective Date set forth
in the Amended Plan are:
(a) That the Confirmation Order has been entered by the Bankruptcy Court,
more than ten (10) days have elapsed since the Confirmation Date, no stay
of the Confirmation Order is in effect and the Confirmation Order has not
been reversed, modified or vacated;
(b) That all conditions to the Closing under the Merger Agreement (other
than the condition that the Effective Date shall have occurred) have been
satisfied or waived by the party entitled thereto; and
(c) That the commitments under the DIP Credit Agreement have terminated,
all amounts owing under or in respect of the DIP Credit Agreement have been
paid in full in cash and any outstanding letters of credit issued under and
in connection with the DIP Credit Agreement or the MobileMedia 1995 Credit
Agreement have been terminated or satisfied, or the Debtors have provided
cash collateral therefor in accordance with the terms of the DIP Credit
Agreement or the MobileMedia 1995 Credit Agreement, as applicable.
DISCHARGE
The Amended Plan incorporates the provisions of Section 1141(d) of the
Bankruptcy Code which provide that except as specifically set forth in the
Amended Plan or the Confirmation Order, all claims against MobileMedia and all
equity interests in MobileMedia will be discharged and/or extinguished on the
Effective Date. In addition, the Amended Plan provides that any person holding
a claim against MobileMedia or an interest in MobileMedia is enjoined from
taking any action which seeks to enforce any claim or assert any interest in
MobileMedia that is inconsistent with the Amended Plan.
RELEASES AND INDEMNIFICATION
The Amended Plan provides that MobileMedia shall release all officers and
directors of all liabilities for any and all actions up through and to the
Effective Date, except for claims against former officers or directors who are
considered by the FCC to be alleged or actual wrongdoers as of the Effective
Date of the Amended Plan for purposes of MobileMedia's Second Thursday
Application provided that such release shall not be provided to any officer or
director who has a Disputed Claim as of the Effective Date. MobileMedia also
agrees to continue in full force and effect, without the benefit of any
discharge, its indemnification obligations to those persons who are officers
and employees of MobileMedia as of the Effective Date, but not directors, and
not any officers who are as of the effective date of the Amended Plan
considered by the FCC to be alleged or actual wrongdoers for purposes of
MobileMedia's Second Thursday Application except for indemnification claims (i)
relating to the Securities Actions, (ii) based upon factual allegations or
causes of action similar to those alleged in the Securities Actions or (iii)
relating to any action to rescind a purchase or sale of a security of
MobileMedia or for damages relating to any such purchase or sale. MobileMedia
has also agreed to purchase a directors and officers' liability insurance
policy covering claims made within three years after the Effective Date with
respect to acts or omissions occurring prior to the Effective Date for its
current and former directors and officers, other than those former officers and
directors who are now or hereafter considered by the FCC to be alleged
wrongdoers for
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purposes of MobileMedia's Second Thursday Application with an aggregate
coverage of up to $40.0 million or such lesser amount as may be purchased for a
premium of $750,000.
JURISDICTION
The Bankruptcy Court will retain jurisdiction to oversee implementation of
the Amended Plan, to resolve any disputes relating to the Merger, to hear all
applications for professional fees, to hear all objections to claims and other
matters as set forth in the Amended Plan or as may be provided for in the
Confirmation Order.
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THE COMBINED COMPANY
OVERVIEW
The Combined Company would be the second largest paging operator in the
United States as measured by pagers in service and net revenues (total revenues
less cost of products sold). On a pro forma basis (but excluding the impact of
expected operational cost synergies), at and for the nine months ended
September 30, 1998, the Combined Company would have had approximately 7.1
million pagers in service and net revenues of $605.3 million, net loss before
extraordinary items of $127.2 million and total debt of $1.3 billion. On a pro
forma basis, Adjusted Pro Forma EBITDA of the Combined Company at September 30,
1998 would have been $190.9 million. On a pro forma basis, for the nine-month
period ended September 30, 1998 the Combined Company cash flows provided by
operating activities, used in investing activities and provided by financing
activities would have been $139.2 million, $487.5 million and $361.4 million,
respectively. Leverage for the Combined Company on a pro forma basis (but
excluding the impact of expected operational cost synergies), as measured by
the ratio of total debt to annualized Adjusted Pro Forma EBITDA for the nine
months ended September 30, 1998, would have been 5.2:1. See "The Combined
Company" and "Unaudited Pro Forma Condensed Consolidated Financial Statements".
Arch believes that the Combined Company will be well positioned to compete
effectively in the highly competitive paging industry for the following
reasons. The combination of MobileMedia's market presence in major metropolitan
markets with Arch's historical emphasis on middle and small markets should
significantly broaden the geographic scope of Arch's marketing presence and
should position the Combined Company to compete more effectively for large
corporate customers with diverse geographic operations. With a significantly
larger subscriber base, the Combined Company should be better able to serve
strategic distribution arrangements, as well as amortize marketing investments
over a larger revenue base. In addition, MobileMedia's third party retail
distribution agreements, which serve the more rapidly growing consumer market,
should complement the more than 200 Arch-owned retail outlets. Similarly,
MobileMedia's two nationwide paging networks (and the potential for higher
revenue nationwide services) should enhance Arch's local coverage and provide
an opportunity to take advantage of Arch's distribution platforms.
MobileMedia's plan to deploy its nationwide N-PCS spectrum utilizing its
existing network infrastructure should permit Arch to market N-PCS (primarily
multi-market alphanumeric and text messaging services) sooner than it would
otherwise have been able to, and these services are expected to offer higher
revenue and more growth potential than basic paging services. Finally,
MobileMedia's investments to date in two national call centers should
supplement Arch's own call center and complement Arch's strategy of evolving to
"scalable" regional customer service centers.
STRATEGY
Arch expects the Combined Company to execute the following strategy:
Cost Reductions. Arch's management has worked closely with MobileMedia's
management to identify redundant managerial and administrative functions that
Arch's management believes can be eliminated without material impact to
customer related activities.
Low Cost Provider. Arch management will continue to evolve its cost structure
to seek greater cost efficiencies. Arch expects to be able to gradually improve
the operating processes of the Combined Company to further reduce the Combined
Company's operating costs from continuing efficiency gains. The greater scale
of the combined operations should permit Arch to further reduce per unit
operating costs.
Balanced Distribution Channels. Arch's combination of direct sales, company-
owned stores, and third party resellers will be supplemented by MobileMedia's
own local market direct sales force, and its distribution agreements with third
party regional and national retailers. In addition, MobileMedia's national
accounts sales force should significantly enhance Arch's efforts to improve
distribution to nationwide customers.
Expanded Product Line. The Combined Company will have one of the broadest
product offerings in the paging industry. MobileMedia's N-PCS Spectrum will
provide Arch with more economical and broader access to higher ARPU, nationwide
and regional services and text messaging services, which to date Arch has
marketed on a limited basis through the resale of other carriers' services on
less attractive terms.
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Enhanced Value-Added Services. The Combined Company's larger subscriber base
should offer new revenue opportunities from the sale of enhanced value-added
services such as voicemail, resale of long-distance service and fax storage
and retrieval.
UNAUDITED FINANCIAL PROJECTIONS AND OPERATIONAL COST SYNERGIES
Arch and MobileMedia have developed the unaudited Combined Company
Projections consisting of projected operating and financial results for the
three-month period ending December 31, 1998 and the twelve-month period ending
December 31, 1999. The Combined Company Projections assume confirmation of the
Amended Plan and consummation of the Merger Agreement and the Amended Plan as
of December 31, 1998. The Combined Company Projections were filed with the
Bankruptcy Court on August 20, 1998 in connection with MobileMedia's filing of
the Amended Plan.
The Combined Company Projections, which were developed by management of each
of Arch and MobileMedia, with the assistance of their respective financial
advisors, are based on:
. Arch's projected financial results, as developed by the management of
Arch, taking into account anticipated cost reductions associated with the
recently announced Divisional Reorganization;
. MobileMedia's projected financial results, as developed by the management
of MobileMedia, taking into account the sale of tower assets and the
related rental by MobileMedia of certain transmitter space and equipment
on such towers;
. Certain adjustments to MobileMedia's projected results made by the
management of Arch to reflect more conservative assumptions with regard
to expected subscriber additions, subscriber turnover and net revenues.
Such adjustments were intended to reflect the continuing potential impact
from the effects of MobileMedia's Chapter 11 filing and the integration
of Arch's and MobileMedia's operations.
ASSUMPTIONS USED IN THE UNAUDITED FINANCIAL PROJECTIONS
Additional information relating to the principal assumptions used in
preparing the Combined Company Projections is set forth below. No assurances
can be given that such assumptions will be realized. See "Risk Factors" for a
discussion of various factors that could materially affect the Combined
Company's financial condition, results of operations, businesses, prospects
and securities.
(i) The Combined Company Projections were prepared assuming an
Effective Date of December 31, 1998.
(ii) General economic conditions and their potential impact on capital
spending and revenues within each of the Combined Company's operating
regions were assumed to continue unchanged throughout the projection
period.
(iii) The financial projections assume $25.0 million in operating cost
reductions annually after the consummation of the Merger. However, due to
the time involved in implementing these cost savings, the financial
projections assume that the Combined Company would recognize only
$12.5 million in operating cost reductions in 1999. The amounts and
timing of these operating cost reductions were estimated during multiple
meetings of the management teams of Arch and MobileMedia. During these
meetings a market-by-market analysis was performed to identify redundant
costs. The Combined Company Projections for the six months ended December
31, 1998 do not include the financial benefits of potential operational
expense reductions and capital expenditure efficiencies expected to
result from the Merger.
(iv) Service revenues for the Combined Company have been projected
based on Arch management's estimates for subscriber growth and average
revenue per unit. Based on these estimates, Arch's 1999 service revenues
were projected to increase by approximately 10.5% from 1998 estimates,
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while MobileMedia's revenues were projected to decrease by approximately
3.9% from 1998 estimates. In addition, the projections assume no
immediate incremental revenues resulting from the business combination.
Pro forma combined service revenues for the three-month period ending
December 31, 1998 are based upon each company's ongoing financial budgets
employing a similar methodology as stated above.
(v) Projected operating costs for 1999 are based on historical cost
margins for both companies individually and the expected decrease in cost
margins as Arch achieves further cost reductions resulting from the
Divisional Reorganization. The Combined Company's projected operating
costs for 1999 are based on the 1998 business plans for the individual
companies, which included two quarters of historical costs at the time
the projections were created. The cost margins used for 1999 assume only
a small reduction in the historical cost margins (approximately 0.5% of
net revenue) for Arch's base business and assume an increase in the
historical cost margins (approximately 3.0% of net revenue) for
MobileMedia's base business. Projected costs are based upon historical
experience, expected market conditions, historical decreases in Arch's
costs as Arch increased its operating leverage. These cost assumptions
were then adjusted to reflect the impact of the assumed synergies. The
Company assumed approximately $12.5 million in recognized synergy savings
throughout 1999 with $5.9 million in savings from service, rent and
maintenance costs, $0.8 million in savings from selling costs, and $5.8
million in savings from general administrative costs.
(vi) The Combined Company Projections assume that the Combined Company
will utilize proceeds from the anticipated increase in the API Credit
Facility and the offering proceeds from the sale of Planned ACI Notes to
fully repay all amounts owed to MobileMedia's secured creditors, any
amounts outstanding under the DIP Credit Agreement, all administrative
claims and transaction expenses and provide for working capital
throughout the Projection Period.
(vii) Interest expense is calculated using the assumed capital
structure of the Related Transactions, as described in "Unaudited
Selected Pro Forma Consolidated Financial Data", during the Projection
Period and includes the amortization of any original issue discounts. New
debt issued as a result of the Merger is assumed to be issued as of
December 31, 1998; however pro forma interest expense has been included
in the projections for the three-month period ending December 31, 1998.
(viii) The Combined Company Projections have been prepared in
accordance with the applicable principles of purchase accounting. Under
purchase accounting principles, the Combined Company will record an
intangible asset equal to the excess, if any, of the purchase price paid
by Arch to acquire MobileMedia over the net fair market value allocated
to the identifiable assets and liabilities of MobileMedia (such excess,
if any, being referred to herein as "Goodwill"). The Combined Company
Projections assume that such amount will be amortized on a straight-line
basis (i.e., ratably) over a period of 10 years. The actual calculation
of goodwill will depend upon the actual price of Arch Common Stock at the
time of the Merger. For illustrative purposes, the Combined Company
Projections assume a value of $2.00 per share of Arch Common Stock price
to calculate the purchase accounting adjustment and an assumption that
the historical, restated book value of MobileMedia assets and liabilities
generally approximates the fair value thereof. See Note 9 to the
"Unaudited Pro Forma Condensed Consolidated Financial Statements" for
additional financial data at various assumed prices for Arch Common Stock
at the Effective Time.
These assumptions and resultant computations were made solely for the
purposes of preparing the Combined Company Projections. The Combined
Company will be required to determine the actual amount of Goodwill and
the appropriate amortization period as of the Effective Date. Such
determinations will be based on the fair values of MobileMedia's net
assets and other relevant information as of the Effective Date. Although
such determinations are not presently expected to result in the actual
amount of Goodwill and related amortization being materially greater or
less than the amounts thereof assumed for purposes of the Combined
Company Projections, there can be no assurance with respect thereto. Any
increase in the amount of amortization of Goodwill would reduce periodic
income before taxes and net income.
85
<PAGE>
(ix) Projections of changes in certain balance sheet accounts such as
accounts receivable and accounts payable are based on historic ratios of
such accounts to other accounts such as revenue and are modified, where
deemed appropriate, to recognize any adjustment or balance sheet item
changes necessary to reflect the business combination. For the 1999
projections, Arch assumed approximately 30 days sales outstanding to
estimate the accounts receivable balance and approximately 44 days costs
outstanding to estimate the accounts payable balance. These assumptions
were based on the historical ratios for both companies and the resulting
balances of the pro forma Combined Company. The projected long-term debt
reflects the accretion of the Arch Discount Notes and the draw-down of
the API Credit Facility to fund working capital requirements throughout
1999.
THE COMBINED COMPANY PROJECTIONS WERE NOT PREPARED WITH A VIEW TO COMPLYING
WITH THE GUIDELINES FOR PROSPECTIVE FINANCIAL STATEMENTS PUBLISHED BY THE
AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS. NEITHER THE INDEPENDENT
ACCOUNTANTS FOR ARCH NOR THE INDEPENDENT AUDITORS FOR MOBILEMEDIA HAVE EXAMINED
OR COMPILED THE ACCOMPANYING COMBINED COMPANY PROJECTIONS AND ACCORDINGLY DO
NOT EXPRESS AN OPINION OR ANY OTHER FORM OF ASSURANCE WITH RESPECT THERETO.
ARCH AND MOBILEMEDIA DO NOT PUBLISH THEIR RESPECTIVE BUSINESS PLANS AND
STRATEGIES OR PROJECTIONS OF THEIR RESPECTIVE ANTICIPATED FINANCIAL POSITION OR
RESULTS OF OPERATIONS. THE PROJECTIONS WERE PREPARED FOR, AND ARE CONTAINED IN,
THE DISCLOSURE STATEMENT BEING DISTRIBUTED TO MOBILEMEDIA'S CREDITORS IN
CONNECTION WITH THE APPROVAL OF THE AMENDED PLAN. THEY WERE INCLUDED THEREIN IN
ORDER TO SATISFY APPLICABLE REQUIREMENTS FOR INFORMATION REQUIRED TO BE
INCLUDED IN A BANKRUPTCY COURT APPROVED DISCLOSURE STATEMENT. THEY ARE PROVIDED
HEREBY SO THAT ARCH STOCKHOLDERS WILL HAVE THE SAME INFORMATION BEING PROVIDED
TO MOBILEMEDIA'S CREDITORS. ACCORDINGLY, ARCH AND MOBILEMEDIA DO NOT INTEND,
AND DISCLAIM ANY OBLIGATION TO, (A) FURNISH UPDATED COMBINED COMPANY
PROJECTIONS, (B) INCLUDE SUCH UPDATED INFORMATION IN ANY DOCUMENTS WHICH MAY BE
REQUIRED TO BE FILED WITH THE SEC, OR (C) OTHERWISE MAKE SUCH UPDATED
INFORMATION PUBLICLY AVAILABLE.
ARTHUR ANDERSEN LLP, THE INDEPENDENT PUBLIC ACCOUNTANTS FOR ARCH, HAS NEITHER
COMPILED NOR EXAMINED SUCH PROJECTIONS AND, ACCORDINGLY, DOES NOT EXPRESS ANY
OPINION OR ANY OTHER FORM OF ASSURANCE WITH RESPECT TO, ASSUMES NO
RESPONSIBILITY FOR AND DISCLAIMS ANY ASSOCIATION WITH, SUCH PROJECTIONS. ERNST
& YOUNG LLP, THE INDEPENDENT AUDITORS FOR MOBILEMEDIA, HAS NEITHER COMPILED NOR
EXAMINED SUCH PROJECTIONS AND, ACCORDINGLY, DOES NOT EXPRESS ANY OPINION OR ANY
OTHER FORM OF ASSURANCE WITH RESPECT TO, ASSUMES NO RESPONSIBILITY FOR AND
DISCLAIMS ANY ASSOCIATION WITH, SUCH PROJECTIONS.
THE COMBINED COMPANY PROJECTIONS PROVIDED HEREIN HAVE BEEN PREPARED BY ARCH
AND MOBILEMEDIA. THE COMBINED COMPANY PROJECTIONS, ALTHOUGH PRESENTED WITH
NUMERICAL SPECIFICITY, ARE BASED UPON A SERIES OF ESTIMATES AND ASSUMPTIONS
WHICH, ALTHOUGH CONSIDERED REASONABLE BY ARCH AND MOBILEMEDIA, MAY NOT BE
REALIZED, AND ARE INHERENTLY SUBJECT TO SIGNIFICANT BUSINESS, ECONOMIC AND
COMPETITIVE UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE
CONTROL OF ARCH AND MOBILEMEDIA. NO REPRESENTATIONS CAN BE OR ARE MADE AS TO
THE ACCURACY OF THE COMBINED COMPANY PROJECTIONS. SOME ASSUMPTIONS INEVITABLY
WILL NOT MATERIALIZE, AND EVENTS AND CIRCUMSTANCES OCCURRING SUBSEQUENT TO THE
DATE ON WHICH THE COMBINED COMPANY PROJECTIONS WERE PREPARED MAY BE DIFFERENT
FROM THOSE ASSUMED OR MAY BE UNANTICIPATED AND, ACCORDINGLY, MAY AFFECT
FINANCIAL RESULTS IN A MATERIAL AND POSSIBLY ADVERSE MANNER. THE COMBINED
COMPANY PROJECTIONS, THEREFORE, MAY NOT BE RELIED UPON AS A GUARANTY OR OTHER
ASSURANCE OF THE ACTUAL RESULTS THAT WILL OCCUR. THE FOREGOING ASSUMPTIONS AND
RESULTANT COMPUTATIONS WERE MADE SOLELY FOR PURPOSES OF PREPARING THE COMBINED
COMPANY PROJECTIONS. SEE "FORWARD LOOKING STATEMENTS".
86
<PAGE>
UNAUDITED COMBINED COMPANY PROJECTED BALANCE SHEETS
(IN MILLIONS)
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1998 1999
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.................................. $ 11.7 $ 5.0
Accounts receivable, net................................... 72.1 76.5
Inventories................................................ 11.7 12.4
Prepaid expenses and other................................. 16.0 10.6
-------- --------
Total current assets..................................... 111.5 104.5
-------- --------
Property and equipment, net................................ 444.7 413.8
Intangible and other assets................................ 1,079.2 902.3
-------- --------
$1,635.4 $1,420.6
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current maturities of long-term debt....................... $ -- $ 1.2
Accounts payable........................................... 79.3 83.4
Accrued expenses........................................... 12.5 12.6
Accrued interest........................................... 18.8 18.8
Customer deposits and deferred revenue..................... 44.9 44.9
Accrued restructuring charges.............................. 21.8 --
-------- --------
Total current liabilities................................ 177.3 160.9
-------- --------
Long-term debt, less current maturities.................... 1,325.1 1,396.0
-------- --------
Other long-term liabilities................................ 31.3 31.3
-------- --------
Stockholders' equity (deficit)............................... 101.7 (167.6)
-------- --------
$1,635.4 $1,420.6
======== ========
</TABLE>
87
<PAGE>
UNAUDITED COMBINED COMPANY PROJECTED STATEMENTS OF OPERATIONS
(IN MILLIONS)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
DECEMBER 31, 1998 (1) DECEMBER 31, 1999 (2)
--------------------- ---------------------
<S> <C> <C>
Service, rental and maintenance
revenues.......................... $198.0 $ 819.6
Product sales...................... 24.8 102.7
------ -------
Total revenues................. 222.8 922.3
Cost of products sold............ (19.4) (81.1)
------ -------
203.4 841.2
Operating expenses:
Service, rental and maintenance.. 51.3 206.4
Selling.......................... 28.5 114.7
General and administrative....... 63.7 252.6
Depreciation and amortization
(3)............................. 89.5 388.8
------ -------
Total operating expenses....... 233.0 962.5
------ -------
Operating income (loss)............ (29.6) (121.3)
Interest expense, net.............. (35.4) (143.0)
Other expenses..................... (2.0) (5.0)
------ -------
Net income (loss).................. $(67.0) $(269.3)
====== =======
</TABLE>
- --------
(1) Does not include the financial impact of potential operational expense
reductions and capital expenditure efficiencies that may be achieved
following the Merger.
(2) Based upon annualized $25.0 million in projected operational cost synergies
(see "Unaudited Combined Company Projected Statement of Cash Flow--
Potential Operational Cost Savings") expected to be realized by December
31, 1999 (assuming closing on January 1, 1999). One-half of the annualized
savings, or $12.5 million, is projected to be recognized throughout 1999.
(3) Projected depreciation and amortization expense for the year ended December
31, 1999 is less than the historical amounts for the Combined Company due
to a decline in the price of pagers purchased by Arch and MMC in 1997 and
1998 and a reduction in the number of pagers purchased by MMC.
88
<PAGE>
UNAUDITED COMBINED COMPANY PROJECTED STATEMENT OF CASH FLOW
(IN MILLIONS)
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1999
------------
<S> <C>
Net cash provided by operating activities.......................... $ 148.7
-------
Cash flows from investing activities:
Additions to property and equipment, net......................... (178.0)
Additions to intangible and other assets......................... (8.0)
-------
Net cash used for investing activities............................. (186.0)
-------
Cash flows from financing activities:
Issuance of long-term debt....................................... 30.6
-------
Net cash provided by financing activities.......................... 30.6
-------
Net decrease in cash and cash equivalents.......................... (6.7)
Cash and cash equivalents, beginning of period..................... 11.7
-------
Cash and cash equivalents, end of period........................... $ 5.0
-------
EBITDA............................................................. $ 267.5
=======
</TABLE>
POTENTIAL OPERATIONAL COST SAVINGS
During the negotiations leading up to the execution of the Merger Agreement,
management of Arch and MobileMedia estimated operational expense reductions and
capital expenditure efficiencies they believed could be achieved in connection
with the Merger. Senior management from Arch and MobileMedia, together with
their respective financial advisors, attended multiple meetings during April
and July 1998 to discuss, review and compare organizational structures and
staffing arrangements in order to identify potential opportunities to eliminate
redundant costs and estimate the resulting financial impact. Three primary
areas of estimated expense reductions included: (i) redundant managerial and
administrative overhead at both Arch and MobileMedia; (ii) duplicative
purchased services, including subcontracted paging services; and (iii)
duplicative capital expenditures.
Potential personnel redundancies and associated estimated financial impact
were identified following a comparison of staffing levels at corporate,
divisional and regional offices and on a market-by-market basis. No personnel
reductions were identified in information services, call center operations,
local market-level customer service, and most other "customer facing"
activities.
Purchased services identified include operations-related services, such as
telecommunications and network services, subcontracted paging network services,
third party dispatch services, and advertising and promotion expenditures, as
well as professional services, including legal and accounting. These purchased
services were reviewed to identify potential cost savings achievable through
volume discounts, conversion to company-owned networks, replacement with lower
cost service providers, and elimination of redundant expenditures.
The two companies' planned capital expenditures were reviewed and savings
opportunities identified for negotiating greater volume discounts on the
purchase of pagers, avoiding network expenditures by utilizing complementary
existing infrastructure, and eliminating duplicative expenditures related to
each company's current N-PCS strategy.
The following table presents the range of estimated annual ongoing expense
reductions and annual capital expenditure savings that management of Arch and
MobileMedia believe might be achieved based upon the foregoing review. Such
estimates are based on current operating run-rates and the existing cost
structures of Arch and MobileMedia, respectively. The potential cost savings
shown below represent expense reduction
89
<PAGE>
opportunities and efficiencies that Arch believes will be implemented during
the first twelve months following the Effective Time of the Merger, based on
current expense run-rates. The estimated expense reductions as shown represent
annualized savings. This table does not reflect additional unidentified savings
opportunities or costs and timing risks associated with achieving the potential
cost savings described.
ESTIMATED RANGE OF ANNUAL OPERATIONAL EXPENSE REDUCTIONS BASED ON CURRENT COSTS
(IN MILLIONS)
<TABLE>
<CAPTION>
LOW HIGH
----- -----
<S> <C> <C>
Operating expense reductions:
Market level personnel overlap................................... $ 6.6 $ 8.0
Regional/divisional level management overlap..................... 3.6 4.4
Corporate administrative overlap................................. 5.8 7.6
Purchased services............................................... 7.5 12.5
----- -----
Potential annual expense reductions............................ $23.5 $32.5
===== =====
Capital expenditure efficiencies:
Pager purchases.................................................. $ 1.7 $ 4.2
Network and N-PCS implementation................................. 8.0 10.0
----- -----
Potential annual capital expenditure efficiencies.............. $ 9.7 $14.2
===== =====
</TABLE>
90
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The following unaudited pro forma condensed consolidated balance sheet has
been prepared to reflect the Merger (using the purchase method of accounting),
assuming the Merger and the Related Transactions had occurred on September 30,
1998. Under the purchase method of accounting, the purchase price will be
allocated to assets acquired and liabilities assumed based on their estimated
fair values at the Effective Time. Income of the Combined Company will not
include income (or loss) of MobileMedia prior to the Effective Time. The
unaudited pro forma condensed consolidated statements of operations for the
year ended December 31, 1997 and the nine months ended September 30, 1998
present the results of operations of Arch and MobileMedia assuming the Merger
and the Related Transactions had been effected on January 1, 1997. The
unaudited pro forma financial data should be read in conjunction with the
notes thereto and the consolidated historical financial statements of Arch and
MobileMedia, including the respective notes thereto, which are included
elsewhere in this Proxy Statement/Prospectus.
The pro forma condensed consolidated financial data is for information
purposes only and is not necessarily indicative of the results of future
operations of the Combined Company or the actual results that would have been
achieved had the Merger and the Related Transactions been consummated during
the periods indicated. Moreover, the pro forma condensed consolidated
financial statements reflect preliminary pro forma adjustments made to combine
Arch with MobileMedia utilizing the purchase method of accounting. The actual
adjustments will be made as of the Effective Time of the Merger and the
Related Transactions and may differ from those reflected in the pro forma
financial statements.
For purposes of presenting the pro forma condensed consolidated financial
statements included herein, Arch has assumed the issuance of 122,845,000
shares of Arch Common Stock (comprised of 14,345,000 shares in the Creditors
Stock Pool and 108,500,000 shares in the Rights Offering) at an aggregate
market value of $245.7 million and that none of the Arch Stockholder Rights
are exercised. In the event the market price of Arch Common Stock is greater
than $2.00 per share, stockholders' equity will increase. In the event the
market price of Arch Common Stock is less than $2.00 per share, stockholders'
equity will decrease. See Note 9 to the Notes to Unaudited Pro Forma Condensed
Consolidated Financial Statements below. See "Risk Factors--Uncertainties
Related to the Merger and the Reorganization--Use of Pro Forma Assumptions".
91
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1998
(IN THOUSANDS)
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS
ARCH MOBILEMEDIA PRO FORMA
(HISTORICAL) (HISTORICAL) DEBITS CREDITS CONSOLIDATED
------------ ------------ ---------- ----------- ------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash
equivalents........... $ 6,571 $ 9,814 $ 16,385
Accounts receivable
net................... 34,496 38,127 72,623
Inventories............ 10,578 1,167 11,745
Prepaid expenses and
other................. 4,170 11,790 15,960
-------- ----------- ----------
Total current assets. 55,815 60,898 116,713
-------- ----------- ----------
Property and
equipment, net........ 223,889 218,873 442,762
Intangible and other
assets (9)............ 662,662 297,535 103,416 (1) 21,117 (1) 1,042,496
-------- ----------- ----------
$942,366 $577,306 $1,601,971
======== =========== ==========
LIABILITIES AND
STOCKHOLDERS' EQUITY
(DEFICIT)
Current liabilities:
Current maturities of
long-term debt........ $ -- $ 905,681 479,000 (1) $ --
426,681 (2)
Accounts payable....... 23,571 14,579 12,473 (2) 25,677
Accrued expenses....... 12,523 71,967 23,498 (2) 60,992
Accrued interest....... 18,767 21,746 21,746 (2) 18,767
Customer deposits and
deferred revenue...... 16,689 31,340 48,029
Accrued restructuring.. 14,810 7,001 7,001 (2) 10,000 (1) 24,810
-------- ----------- ----------
Total current
liabilities......... 86,360 1,052,314 178,275
-------- ----------- ----------
Long-term debt, less
current maturities.... 992,790 -- 322,000 (1) 1,314,790
-------- ----------- ----------
Deferred income taxes.. -- 2,655 2,655 (2) --
-------- ----------- ----------
Other long-term
liabilities........... 28,639 69,611 69,611 (2) 28,639
-------- ----------- ----------
Stockholders' equity
(deficit) (9):
Preferred stock........ 3 -- 3
Common stock........... 211 -- 1,228 (1) 1,439
Additional paid-in
capital............... 377,382 676,025 1,228 (1) 245,690 (1) 621,844
676,025 (3)
Accumulated deficit.... (543,019) (1,223,299) 21,117 (1) 563,665 (2) (543,019)
676,025 (3)
4,726 (1)
-------- ----------- ----------
Total stockholders'
equity (deficit).... (165,423) (547,274) 80,267
-------- ----------- ----------
$942,366 $ 577,306 $1,601,971
======== =========== ==========
</TABLE>
See accompanying notes to unaudited pro forma condensed consolidated financial
statements
92
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ARCH MOBILEMEDIA PRO FORMA PRO FORMA
(HISTORICAL) (HISTORICAL) ADJUSTMENTS CONSOLIDATED
------------ ------------ ----------- ------------
<S> <C> <C> <C> <C>
Service, rental and
maintenance revenues... $ 351,944 $ 491,174 $ (9,333)(4) $ 833,785
Products sales.......... 44,897 36,218 -- 81,115
----------- --------- ----------- ------------
Total revenues...... 396,841 527,392 (9,333) 914,900
Cost of products sold... (29,158) (35,843) -- (65,001)
----------- --------- ----------- ------------
367,683 491,549 (9,333) 849,899
----------- --------- ----------- ------------
Operating expenses:
Service, rental and
maintenance.......... 79,836 139,333 10,800 (5) 220,636
(9,333)(4)
Selling............... 51,474 69,544 -- 121,018
General and
administrative....... 106,041 179,599 -- 285,640
Depreciation and
amortization......... 232,347 140,238 10,342 (6) 398,606
15,679 (6)
Bankruptcy related
expense.............. -- 19,811 (7) 19,811
----------- --------- ----------- ------------
Total operating
expenses........... 469,698 548,525 27,488 1,045,711
----------- --------- ----------- ------------
Operating income (loss). (102,015) (56,976) (36,821) (195,812)
Interest expense, net... (97,159) (67,611) 67,611 (8) (134,749)
(37,590)(8)
Other (expenses) income. (3,872) 3 -- (3,869)
----------- --------- ----------- ------------
Income (loss) before
income tax benefit and
extraordinary item..... (203,046) (124,584) (6,800) (334,430)
Benefit from income
taxes.................. 21,172 -- -- 21,172
----------- --------- ----------- ------------
Income (loss) before
extraordinary item..... $ (181,874) $(124,584) $ (6,800) $ (313,258)
=========== ========= =========== ============
Basic/diluted income
(loss) before
extraordinary item per
share.................. $ (8.77) $ (2.18)
=========== ============
Weighted average common
shares outstanding..... 20,746,240 122,845,000 (1) 143,591,240
=========== =========== ============
</TABLE>
See accompanying notes to unaudited pro forma condensed consolidated financial
statements
93
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ARCH MOBILEMEDIA PRO FORMA PRO FORMA
(HISTORICAL) (HISTORICAL) ADJUSTMENTS CONSOLIDATED
------------ ------------ ----------- ------------
<S> <C> <C> <C> <C>
Service, rental and
maintenance revenues... $ 277,826 $320,002 $ (6,341)(4) $ 591,487
Products sales.......... 31,811 20,367 -- 52,178
---------- -------- ----------- -----------
Total revenues...... 309,637 340,369 (6,341) 643,665
Cost of products sold... (21,863) (16,531) -- (38,394)
---------- -------- ----------- -----------
287,774 323,838 (6,341) 605,271
---------- -------- ----------- -----------
Operating expenses:
Service, rental and
maintenance.......... 60,812 83,117 8,100 (5) 145,688
(6,341)(4)
Selling............... 36,902 45,848 -- 82,750
General and
administrative....... 84,527 101,383 -- 185,910
Depreciation and
amortization......... 164,990 88,312 7,756 (6) 272,818
11,760 (6)
Restructuring expense. 16,100 -- -- 16,100
Bankruptcy related
expense.............. -- 13,831 (7) 13,831
---------- -------- ----------- -----------
Total operating
expenses........... 363,331 332,491 21,275 717,097
---------- -------- ----------- -----------
Operating income (loss). (75,557) (8,653) (27,616) (111,826)
Interest expense, net... (78,334) (42,449) 42,449 (8) (106,527)
(28,193)(8)
Gain on sale of assets.. -- 94,085 -- 94,085
Other expenses.......... (2,219) -- -- (2,219)
---------- -------- ----------- -----------
Income (loss) before
provision for income
taxes and extraordinary
item................... (156,110) 42,983 (13,360) (126,487)
Provision for income
taxes.................. -- 678 -- 678
---------- -------- ----------- -----------
Income (loss) before
extraordinary item..... $ (156,110) $ 42,305 $ (13,360) $ (127,165)
========== ======== =========== ===========
Basic/diluted income
(loss) before
extraordinary item per
share.................. $ (7.45) $ (0.88)
========== ===========
Weighted average common
shares outstanding..... 20,968,281 122,845,000 (1) 143,813,281
========== =========== ===========
</TABLE>
See accompanying notes to unaudited proforma condensed consolidated financial
statements
94
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) To record (i) $322 million of additional Arch borrowings necessary to fund
obligations of the Merger, (ii) the issuance of 122,845,000 shares of Arch
Common Stock pursuant to the Merger Agreement and the Rights Offering,
having an aggregate value of $245.7 million, (iii) the writeoff of $21.1
million of deferred financing costs associated with the former MobileMedia
credit facility and (iv) the excess of purchase price over the assumed fair
value of the identifiable assets acquired. The historical book value of the
tangible and intangible assets of MobileMedia was assumed to approximate
fair value. The excess of purchase price over the assumed fair value of
identifiable assets acquired is calculated as follows:
<TABLE>
<S> <C>
Consideration exchanged:
Payments to secured creditors................................ $479,000
Assumed fair value of shares issued to unsecured creditors... 28,690
--------
507,690
Liabilities assumed:
Administrative costs....................................... 35,000(a)
Other...................................................... 81,915(b)
--------
Total consideration exchanged................................ 624,605
Transaction costs............................................ 25,000(c)
Restructuring reserve........................................ 10,000(d)
--------
Total purchase price......................................... 659,605
Less fair value of tangible and intangible net assets acquired. 556,189
--------
Excess of purchase price over tangible and intangible net
assets acquired............................................... 103,416
========
</TABLE>
--------
(a) Consists of payments to certain of MobileMedia's creditors. The
details of these costs are listed in "The MobileMedia Plan of
Reorganization--The Amended Plan".
(b) This amount relates to operating liabilities such as accounts payable,
accrued expenses and advance billings which Arch will assume in the
Merger.
(c) This amount includes legal, investment banking, financing, accounting
and other costs incurred by Arch to consummate the Merger.
(d) Consists of severance costs related primarily to duplicative general
and administrative functions at the corporate, regional and market
levels of MobileMedia, such as technical, marketing, finance and other
support functions. These terminations will occur as the operations of
MobileMedia are integrated into those of Arch and are based on
management's preliminary review of synergies that exist between the
companies. This analysis will be finalized after consummation of the
Merger and may result in additional amounts to be reserved.
(2) To eliminate liabilities of MobileMedia which (i) Arch will not assume,
(ii) will be satisfied in cash or (iii) will be exchanged for Arch Common
Stock.
(3) To eliminate MobileMedia equity balances.
(4) To eliminate revenues and expenses between Arch and MobileMedia.
(5) This entry records the incremental rental expense for the use of
transmitter space on the towers that were sold and leased back in
MobileMedia's tower sale transaction.
(6) To record the amortization on the excess of purchase price over the
tangible and intangible assets acquired, calculated on a straight-line
basis over 10 years in the amounts of $10,342 and $7,756 for the year ended
December 31, 1997 and the nine months ended September 30, 1998,
respectively. The actual amortization recorded upon consummation of the
Merger may differ from these amounts due to changes in the price of Arch
Common Stock at the Effective Time as well as full allocation of purchase
price to assets and liabilities assumed pursuant to APB No. 16. The
amortization related to the $276.4 million assumed fair value of intangible
assets, consisting primarily of FCC licenses and customer lists with
assumed fair values of $246.4 million and $26.8 million, respectively has
already been provided in the historical financial statements of
MobileMedia. The MobileMedia historical amortization was adjusted by
$15,679 and
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<PAGE>
$11,760 for the year ended December 31, 1997 and the nine months ended
September 30, 1998, respectively, to conform MobileMedia's 25 year
estimated useful life of FCC licenses to Arch's 10 year estimated useful
life. The estimated useful life of the customer lists was assumed to be 3
years.
(7) These costs represent incremental third-party legal, accounting and
financial advisory fees and expenses incurred by MobileMedia related to its
administration of bankruptcy proceedings which are non-recurring.
(8) To remove the interest expense associated with the various MobileMedia
credit facilities and notes eliminated pursuant to the Amended Plan and to
record the interest associated with the additional Arch borrowings used to
fund the Merger. Interest was calculated assuming a 9.5% rate on $122.0
million of additional bank borrowings and a 13% rate on $200.0 million of
senior notes. Interest expense would be $27,891 and $28,494 and $37,188 and
$37,993 for the nine months ended September 30, 1998 and the year ended
December 31, 1997, respectively if interest rates were to decrease or
increase 1/8 of a percent, respectively.
(9) The following unaudited pro forma consolidated financial information is
provided to illustrate certain financial measurements if the shares were
valued at the approximate current market price of $1.50. In the following
example the purchase price is $7.2 million lower than the amount disclosed
in Note 1 due to the decrease in the assumed market value of Arch Common
Stock from $2.00 to $1.50 per share for the shares issued pursuant to the
Merger Agreement and the Amended Plan.
<TABLE>
<CAPTION>
APPROXIMATE CURRENT
MARKET PRICE
-------------------
$1.50
-------------------
<S> <C>
Shares exchanged (000s)............................... 122,845
Excess of purchase price over tangible and intangible
net assets acquired.................................. $ 96,244
Total assets.......................................... 1,594,799
Stockholders' equity.................................. 73,095
Operating income (loss):
For the year ended December 31, 1997................ (195,095)
For the nine months ended September 30, 1998........ (111,288)
Income (loss) before extraordinary item:
For the year ended December 31, 1997................ (312,541)
For the nine months ended September 30, 1998........ (126,627)
Basic/diluted income (loss) before extraordinary item
per share:
For the year ended December 31, 1997................ (2.18)
For the nine months ended September 30, 1998........ (0.88)
</TABLE>
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<PAGE>
THE ARCH RIGHTS OFFERING
Arch will offer the Arch Stockholder Rights described herein to the
stockholders of Arch through the Arch Rights Offering in the manner described
herein, subject to certain conditions.
TERMS OF THE ARCH RIGHTS OFFERING
In connection with the Arch Rights Offering, the holders of Arch Common
Stock and Series C Preferred Stock on a record date to be determined and
announced by the Arch Board will receive, on a pro rata basis (assuming the
conversion of the Series C Preferred Stock), Arch Stockholder Rights to
purchase up to 44,893,166 shares of Arch Common Stock. No fractional shares
will be issued upon the exercise of Arch Stockholder Rights, the number of
shares of Arch Common Stock to be issued will be rounded up or down to the
nearest whole number of shares.
The Arch Stockholder Rights will not be transferable. The Arch Stockholder
Rights will be evidenced by non-transferable Subscription Certificates which
will be mailed to each stockholder of Arch promptly following the record date
for the determination of Arch Stockholders entitled to receive the Arch
Stockholder Rights.
The Arch Stockholder Rights will be exercisable immediately after Arch has
distributed Subscription Certificates. The Arch Stockholder Rights will expire
at 5:00 p.m., New York City time, on the Expiration Date, a date selected by
Arch and MobileMedia on or prior to the later of (i) the Confirmation Date or
(ii) the date on which the FCC Grant is issued, which date must be at least 15
days after the date on which all closing conditions to the Merger (other than
the conditions relating to the finality of the Confirmation Order and the FCC
Grant, and certain other conditions which by their terms cannot be satisfied
until the Effective Time) are first satisfied or, if legally permissible,
waived. The holders of Arch Common Stock and Series C Preferred Stock may also
call Arch at 1- 800-322-2885 to find out the Expiration Date. Any Arch
Stockholder Rights which remain unexercised at the close of business on the
Expiration Date will no longer be exercisable and will represent only the
right to receive Arch Participation Warrants to acquire an equivalent number
of shares of Arch Common Stock at the Warrant Exercise Price. See "Description
of Arch Securities--Arch Participation Warrants".
Holders of Arch Stockholder Rights may subscribe for shares of Arch Common
Stock in the Arch Stockholder Rights Offering in the manner described under
"--Method of Exercise of Arch Stockholder Rights". All subscriptions will be
irrevocable. Subscription documents and subscribed funds will be held in
escrow by the Subscription Agent (as defined below), pending the Effective
Time. If the Merger Agreement is terminated because the Merger does not take
place by June 30, 1999 or the Arch Rights Offering is otherwise terminated for
any reason, the Subscription Agent will promptly return all subscribed funds
to subscribers without interest. Any and all interest earned on subscribed
funds will be remitted to Arch.
SUBSCRIPTION AGENT
Arch has appointed The Bank of New York as Subscription Agent for the Arch
Rights Offering. For its services in processing the exercise of Arch
Stockholder Rights, the Subscription Agent will receive a fee from Arch
estimated to be $25,000 and reimbursement for all out-of-pocket expenses
relating to the Arch Rights Offering. The Subscription Agent is also Arch's
transfer agent and registrar.
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<PAGE>
INFORMATION AGENT
Arch has appointed MacKenzie Partners, Inc. Information Agent for the Arch
Rights Offering. The Information Agent will receive reimbursement for all out-
of-pocket expenses related to the Arch Rights Offering. Any questions or
requests for additional copies of this Proxy Statement/Prospectus or the
instructions to the Subscription Certificate may be directed to the Information
Agent at the following address and telephone number:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call collect)
(Call toll-free) (800) 322-2885
Arch has not employed any brokers, dealers or underwriters in connection with
the solicitation of exercises of Arch Stockholder Rights in the Arch Rights
Offering, and, except as described above, no other commissions, fees or
discounts will be paid in connection with such solicitation. Certain directors
and officers of Arch may answer questions or solicit responses from Arch
stockholders, but such directors and officers will not receive any commissions
or compensation for such services other than their normal employment
compensation.
METHOD OF EXERCISE OF ARCH STOCKHOLDER RIGHTS
Arch Stockholder Rights may be exercised by filling in and signing the
Subscription Certificate and either mailing it in the envelope provided or
delivering it to the Subscription Agent, in either case together with payment
as described below under "Payment for Shares". Arch Stockholder Rights may also
be exercised through an Arch Stockholder Rights holder's broker, or other
nominee if such stockholder's shares of Arch Common Stock are held in such
broker's or nominee's name. Such brokers or nominees may charge a servicing fee
for exercising such Arch Stockholder Rights.
Completed Subscription Certificates must be received by the Subscription
Agent prior to 5:00 p.m., New York City time, on the Expiration Date. The
Subscription Certificate and payment should be delivered to the offices of the
Subscription Agent by one of the methods described below:
(1)By mail:
The Bank of New York
Tender and Exchange Department
P.O. Box 11248
Church Street Station
New York, New York 10286-1248
(2)By Hand, Express Mail or Overnight Courier:
The Bank of New York
Tender and Exchange Department
101 Barclay Street
Receive and Delivery Window-Street Level
New York, New York 10286
PAYMENT FOR SHARES
Holders of Arch Stockholder Rights who elect to acquire shares of Arch Common
Stock must send the Subscription Certificate together with payment in the form
of a certified check or money order for the shares subscribed for. To be
accepted, payment, together with the executed Subscription Certificate, must be
received by the Subscription Agent at its Tender and Exchange Department, P.O.
Box 11248, Church Street Station, New York, New York 10286-1248 or its Tender
and Exchange Department, 101 Barclay Street, Receive and Delivery Window--
Street Level, New York, New York 10286 prior to 5:00 p.m., New York City time,
on the Expiration Date. The Subscription Agent will deposit all such payments
received by it prior to the final due date into a
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segregated interest-bearing account (which interest will accrue solely to the
benefit of Arch) pending the consummation of the Arch Rights Offering.
A PAYMENT PURSUANT TO THIS METHOD MUST BE IN UNITED STATES DOLLARS BY MONEY
ORDER OR CERTIFIED CHECK. PAYMENT MUST BE PAYABLE TO THE BANK OF NEW YORK, AND
MUST ACCOMPANY AN EXECUTED SUBSCRIPTION CERTIFICATE FOR SUCH SUBSCRIPTION
CERTIFICATE TO BE ACCEPTED. THE SUBSCRIPTION AGENT WILL NOT ACCEPT CASH AS A
MEANS OF PAYMENT FOR SHARES.
Whichever of the two methods described above is used, issuance and delivery
of certificates for the shares purchased are subject to collection of any
certified checks or money orders. Payment of the Subscription Price will be
deemed to have been received by the Subscription Agent only upon receipt by the
Subscription Agent of any certified check or of any postal, telegraphic or
express money order.
Holders who hold Arch Stockholder Rights for the account of others, such as
brokers, trustees or depositaries for securities, should notify the respective
beneficial owners of such Arch Stockholder Rights as soon as possible to
ascertain such beneficial owners' intentions and to obtain instructions with
respect to the Arch Stockholder Rights. If the beneficial owner so instructs,
the record holder of such Arch Stockholder Rights should complete Subscription
Certificates and submit them to the Subscription Agent with the proper payment.
In addition, beneficial owners of Arch Stockholder Rights held through such a
holder should contact the holder and request the holder to effect transactions
in accordance with the beneficial owner's instructions.
The instructions accompanying the Subscription Certificates should be read
carefully and followed in detail. DO NOT SEND SUBSCRIPTION CERTIFICATES OR
PAYMENTS TO ARCH.
THE METHOD OF DELIVERY OF SUBSCRIPTION CERTIFICATES AND PAYMENT OF THE
SUBSCRIPTION PRICE TO THE SUBSCRIPTION AGENT WILL BE AT THE ELECTION AND RISK
OF THE ARCH STOCKHOLDER RIGHTS HOLDERS, BUT IF SENT BY MAIL IT IS RECOMMENDED
THAT SUCH CERTIFICATES AND PAYMENTS BE SENT BY REGISTERED MAIL, PROPERLY
INSURED, WITH RETURN RECEIPT REQUESTED, AND THAT A SUFFICIENT NUMBER OF DAYS BE
ALLOWED TO ENSURE DELIVERY TO THE SUBSCRIPTION AGENT AND CLEARANCE OF PAYMENT
PRIOR 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
All questions concerning the timeliness, validity, form and eligibility of
any exercise of Arch Stockholder Rights will be determined by Arch, whose
determination will be final and binding. Arch, in its sole discretion, may
waive any defect or irregularity, or permit a defect or irregularity to be
corrected within such time as it may determine, or reject the purported
exercise of any Arch Stockholder Right. Subscriptions will not be deemed to
have been received or accepted until all irregularities have been waived or
cured within such time as Arch determines in its sole discretion. Neither Arch
nor the Subscription Agent will be under any duty to give notification of any
defect or irregularity in connection with the submission of Subscription
Certificates or incur any liability for failure to give such notification.
Certificates representing shares of Arch Common Stock purchased will be
delivered to the purchaser as soon as practicable after the Effective Time. It
is expected that such certificates will be available for delivery within five
business days following the Effective Date.
If either the number of Arch Stockholder Rights being exercised is not
specified on a Subscription Certificate, or the payment delivered is not
sufficient to pay the full aggregate Subscription Price for all shares stated
to be subscribed for, the Arch Stockholder Rights holder will be deemed to have
exercised the maximum number of Arch Stockholder Rights that could be exercised
for the amount of the payment delivered by such Arch Stockholder Rights holder.
If the payment delivered by the Arch Stockholder Rights holder exceeds the
aggregate Subscription Price for the number of Arch Stockholder Rights
evidenced by the Subscription Certificate(s) delivered by such Arch Stockholder
Rights holder, any excess payment will be returned to the Arch Stockholder
Rights holder as soon as practicable by mail, without interest or deduction.
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Any questions or requests for assistance concerning the method of exercising
Arch Stockholder Rights or requests for additional copies of this Proxy
Statement/Prospectus or the instructions should be directed to the Information
Agent at its address set forth above.
DILUTION
The subscription price per Arch Stockholder Right will exceed the net
tangible book value per share of Arch Common Stock, which is a negative number.
Accordingly, subscribers in the Arch Rights Offering will experience immediate
and substantial dilution.
USE OF PROCEEDS
The net proceeds of the Arch Rights Offering will be applied in their
entirety towards payment of a portion of the amounts payable to secured
creditors of MobileMedia under the Amended Plan. See "The MobileMedia Plan of
Reorganization--The Amended Plan".
NO REVOCATION
AFTER A HOLDER OF ARCH STOCKHOLDER RIGHTS HAS SUBSCRIBED, SUCH SUBSCRIPTION
MAY NOT BE REVOKED BY SUCH ARCH STOCKHOLDER RIGHTS HOLDER.
NON-TRANSFERABLE RIGHTS
Arch Stockholder Rights may not be purchased, sold or transferred,
ARCH PARTICIPATION WARRANTS
To the extent the holder of an Arch Stockholder Right does not exercise such
right, it shall receive Arch Participation Warrants to acquire an equivalent
number of shares of Arch Common Stock. The Arch Participation Warrants will
have a fixed exercise price equal to the amount that would result at September
1, 2001 from an investment of $2.00 on the Effective Date assuming a 20% per
annum internal rate of return. The Arch Participation Warrants will be fully
transferable and exercisable until September 1, 2001.
FOREIGN AND CERTAIN OTHER HOLDERS
Subscription Certificates will not be mailed to Arch stockholders whose
addresses are outside the United States, but will be held by the Subscription
Agent for each such holder's account. To exercise their Arch Stockholder
Rights, such stockholders must notify the Subscription Agent at or prior to
5:00 p.m., New York time, on the Expiration Date. Such Arch Stockholder Rights
will expire at the Expiration Date.
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INDUSTRY OVERVIEW
GENERAL
Paging is a method of wireless communication which uses an assigned radio
frequency to contact a paging subscriber anywhere within a designated service
area. A subscriber carries a pager which receives messages by the transmission
of a one-way radio signal. To contact a subscriber, a message is usually sent
by placing a telephone call to the subscriber's designated telephone number.
The telephone call is received by an electronic paging switch which generates
a signal that is sent to radio transmitters in the service area. Depending
upon the topography of the service area, the operating radius of a radio
transmitter typically ranges from three to 20 miles. The transmitters
broadcast a signal that is received by the pager a subscriber carries, which
alerts the subscriber by a tone or vibration that there is a voice, tone,
digital or alphanumeric message.
The paging industry has been in existence since 1969 when the FCC allocated
a group of radio frequencies for use in providing one-way and two-way types of
mobile communications services. Throughout its history, the paging industry
has been characterized by consolidation, substantial growth and technological
change. Historically, the paging industry has been highly fragmented, with a
large number of small, local operators. Since the 1980s, concentration in the
paging industry has increased as paging companies continue to grow rapidly
either internally or through acquisitions.
Arch believes that paging is the most cost-effective form of mobile wireless
communications. Paging has an advantage over conventional telephone service
because a pager's reception is not restricted to a single location, and over a
cellular telephone or broadband PCS handset because a pager is smaller, has a
longer battery life and, most importantly, because pagers and air time
required to transmit an average message cost less than equipment and air time
for cellular telephones or broadband PCS handsets. Paging subscribers
generally pay a flat monthly service fee for pager services, regardless of the
number of messages, unlike cellular telephone or broadband PCS subscribers,
whose bills typically have a significant variable usage component. For these
reasons, some cellular subscribers use a pager in conjunction with their
cellular telephone to screen incoming calls and thus lower the expense of
cellular telephone service, and to a lesser extent, some broadband PCS
subscribers use a pager in conjunction with their broadband PCS handsets,
which often incorporate messaging functions, but have a much shorter battery
life.
Industry sources estimate that, since 1992, the number of pagers in service
in the United States has grown at an annual rate of approximately 25% and will
continue to grow at an annual rate of approximately 8% through the year 2001.
Based on industry sources, Arch believes that there were in excess of 49
million pagers in service in the United States at December 31, 1997. Factors
contributing to this growth include: (i) a continuing shift towards a service-
based economy; (ii) increasing mobility of workers and the population at
large; (iii) increasing awareness of the benefits of mobile communications
among the population at large; (iv) the relatively high cost of two-way mobile
communications, such as cellular telephone services; (v) introduction of new
or enhanced paging services, including nationwide paging capability; (vi)
continuing improvements in the performance of paging equipment; and (vii)
significant price/performance improvements in paging services. The paging
industry has undergone substantial consolidation over the past ten years, and
Arch believes that the top five paging carriers represent approximately 50% of
the pagers in service. Nonetheless, Arch believes that the paging industry
remains fragmented, with more than 300 licensed carriers in the United States,
and will continue to undergo consolidation.
The paging industry has benefited from technological advances resulting from
research and development conducted by vendors of pagers and transmission
equipment. Such advances include microcircuitry, liquid crystal display
technology and standard digital encoding formats, which have enhanced the
capability and capacity of paging services while lowering equipment and air
time costs. Technological improvements have enabled Arch to provide better
quality services at lower prices to its subscribers and have generally
contributed to strong growth in the market for paging services.
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The paging industry has traditionally distributed its services through direct
marketing and sales activities. In recent years, additional channels of
distribution have evolved, including: (i) carrier-operated stores; (ii)
resellers, who purchase paging services on a wholesale basis from carriers and
resell those services on a retail basis to their own customers; (iii) agents
who solicit customers for carriers and are compensated on a commission basis;
(iv) retail outlets that often sell a variety of merchandise, including pagers
and other telecommunications equipment; and (v) most recently, the Internet.
While most paging subscribers traditionally have been business users, industry
observers believe that pager use among retail consumers has increased
significantly in recent years. In addition, paging subscribers have
increasingly chosen to purchase rather than lease their pagers. These trends
are expected to continue.
PAGING AND MESSAGING SERVICES
The following table describes the principal paging and messaging services
currently available in the paging industry.
<TABLE>
<CAPTION>
TYPE OF SERVICE DESCRIPTION
--------------- -----------
<C> <S>
Numeric (Digital Display) Paging
Service......................... Numeric paging service permits a caller
utilizing a touchtone telephone to transmit
to a subscriber a numeric message
consisting of a telephone number, an
account number or coded information.
Numeric pagers have memory capability to
store several such numeric messages which
can be recalled by a subscriber when
desired.
Alphanumeric Paging Service...... Alphanumeric paging service allows
subscribers to receive and store messages
consisting of both letters and numbers.
Alphanumeric pagers have sufficient memory
to store thousands of characters. This
service also has the capability to tie into
computer-based networks to provide advanced
messaging services. Callers may input
messages either by using an operator
dispatch center, a personal computer
equipped with applicable software or a
portable alphanumeric input device.
Voice Mail Service............... Voice mail service enables a caller to
leave a recorded message and automatically
alerts a subscriber, through a pager, that
a message has been recorded. A subscriber
may retrieve messages by calling his or her
voice mailbox at a paging network center.
Wireless Electronic Mail Service. Wireless electronic mail allows the user to
receive messages via wireless receivers
used in conjunction with portable personal
computers or "PDAs" (this service is not
currently offered by Arch or MobileMedia).
</TABLE>
COMPETITION
The paging industry is highly competitive with price being the primary means
of differentiation among providers of numeric display paging services.
Companies in the industry also compete on the basis of coverage area offered to
subscribers, available services offered in addition to basic numeric or tone
paging, transmission quality, system reliability and customer service.
Arch and MobileMedia compete by maintaining competitive pricing of their
products and service offerings, by providing high-quality, reliable
transmission networks and by furnishing subscribers a superior level of
customer service. Several hundred licensed paging companies provide only local
basic numeric or tone paging service. Compared to these companies, Arch and
MobileMedia offer wireless messaging services on a local, regional and
nationwide basis. In addition, Arch and MobileMedia offer enhanced services
such as alphanumeric paging, voice mail and voice mail notifications, news,
sports, weather reports and stock quotes.
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Arch and MobileMedia compete with one or more competitors in all markets in
which they operate. Although some of Arch's and MobileMedia's competitors are
small, privately owned companies serving one market area, others are large
diversified telecommunications companies serving numerous markets. Some of
Arch's and MobileMedia's competitors possess financial, technical and other
resources greater than those of Arch and MobileMedia. Major paging carriers
that currently compete in one or more of Arch's and MobileMedia's markets
include PageNet, Metrocall, and AirTouch Communications, Inc.
As paging services become increasingly interactive, and as two-way services
become increasingly competitive, the scope of competition for communications
service customers in Arch's and MobileMedia's markets may broaden. For example,
the FCC has created potential sources of competition by auctioning new spectrum
for wireless communications services and local multipoint distribution service
and holding an auction in the 220-222 MHZ service. Further, the FCC has
announced plans to auction licenses in the general wireless communications
services, a service created from spectrum reallocated from federal government
use in 1995. Moreover, entities offering service on wireless two-way
communications technology, including cellular, broadband PCS and specialized
mobile radio services, as well as mobile satellite service providers, also
compete with the paging services that Arch and MobileMedia provide. See "Risk
Factors--Risks Common to Arch and MobileMedia--Competition and Technological
Change."
In the 1995 FCC auctions for regional narrowband PCS licenses, MobileMedia
purchased licenses for a nationwide system with a common two-way frequency. In
addition, MobileMedia acquired a second narrowband PCS license for a nationwide
system in the MobileComm Acquisition. Competitors of MobileMedia, some of which
have substantially greater resources than MobileMedia, also acquired PCS
licenses in the FCC auctions. One of MobileMedia's competitors, SkyTel,
recently introduced a two-way narrowband PCS wireless data service. Although
Arch cannot predict the types of PCS services which will be offered by those
companies, Arch expects that those services will compete with the narrowband
PCS and paging services to be offered by MobileMedia.
REGULATION
Paging operations and the construction, modification, ownership and
acquisition of paging systems are subject to extensive regulation by the FCC
under the Communications Act and, to a much more limited extent, by public
utility or public service commissions in certain states. The following
description does not purport to be a complete discussion of all present and
proposed legislation and regulations relating to Arch's and MobileMedia's
paging operations.
FEDERAL REGULATION
Regulatory Classification.
Paging companies historically have been subject to different federal
regulatory requirements depending upon whether they were providing service as a
Radio Common Carrier ("RCC"), a Private Carrier Paging Operator ("PCP") or as a
reseller. Arch's and MobileMedia's paging operations encompass RCC, PCP and
resale operations. However, federal legislation enacted in 1993 required the
FCC to reduce the disparities in the regulatory treatment of similar mobile
services (such as RCC and PCP services), and the FCC has taken, and continues
to take, actions to implement this legislation. Under the new regulatory
structure, all of Arch's and MobileMedia's paging services are classified as
CMRS. As CMRS providers, Arch and MobileMedia are regulated as common carriers,
except that the FCC has exempted paging services, which have been found to be
highly competitive, from some typical common carrier regulations, such as
tariff filing and resale requirements.
The classification of Arch's and MobileMedia's paging operations as CMRS
affects the level of permissible foreign ownership, as discussed below, and the
nature and extent of the state regulation to which both may be subject. In
addition, the FCC now is required to resolve competing requests for CMRS
spectrum by conducting auctions, which may have the effect of increasing the
costs of acquiring additional spectrum in markets in which Arch and MobileMedia
operate. Also, Arch and MobileMedia are obligated to pay certain regulatory
fees in connection with their paging operations.
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FCC Regulatory Approvals and Authorizations
The Communications Act requires radio licensees such as Arch and MobileMedia
to obtain prior approval from the FCC for the assignment or transfer of control
of any construction permit or station license or authorization or any rights
thereunder. This statutory requirement attaches to acquisitions of other paging
companies (or other radio licensees) by Arch and MobileMedia as well as
transfers of a controlling interest in any of Arch's or MobileMedia's licenses,
construction permits or any rights thereunder. To date, the FCC has approved
each assignment and transfer of control for which Arch and MobileMedia have
sought approval. Although there can be no assurance that any future requests
for approval of transfers of control and/or assignments of license will be
acted upon in a timely manner by the FCC, or that the FCC will grant the
approval requested, with the exception of the pending FCC investigation into
MobileMedia's qualification to continue to be an FCC licensee, neither Arch nor
MobileMedia knows of any reason that any such applications will not be approved
or granted.
Effective April 2, 1998, the FCC's Wireless Telecommunications Bureau, which
directly regulates Arch's and MobileMedia's paging activities, announced that
it will forbear from enforcing its filing requirements with respect to pro
forma assignments and transfers of control of certain wireless authorizations,
such as Arch's and MobileMedia's RCC and PCP licenses. Pursuant to this
decision, wireless telecommunications carriers now only have to file a written
notification of a pro forma transaction within 30 days after the transaction is
completed. This decision will expedite the process and reduce the costs related
to corporate reorganizations; however, Arch and MobileMedia may still be
required to obtain prior FCC approval for the pro forma assignment or transfer
of control of some of their licenses not covered by the forbearance decision,
such as certain business radio authorizations.
The FCC paging licenses granted to Arch and MobileMedia are for varying terms
of up to 10 years, at the end of which renewal applications must be approved by
the FCC. In the past, paging license renewal applications generally have been
granted by the FCC upon a showing of compliance with FCC regulations and of
adequate service to the public. With the exception of the pending FCC
proceeding regarding MobileMedia's qualifications to remain an FCC licensee,
Arch and MobileMedia are unaware of any circumstances which would prevent the
grant of any pending or future renewal applications; however, no assurance can
be given that any of Arch's or MobileMedia's renewal applications will be free
of challenge or will be granted by the FCC. It is possible that there may be
competition for radio spectrum associated with licenses as they expire, thereby
increasing the chances of third-party interventions in the renewal proceedings.
Other than those renewal applications still pending, the FCC has thus far
granted each license renewal application that Arch or MobileMedia have filed.
On February 13, 1997, in connection with its filing for protection under the
Bankruptcy Code, MobileMedia sought a grant of permission from the FCC to
execute an involuntary, pro forma assignment of its licenses to MobileMedia as
debtors-in-possession. On March 3, 1997, the FCC granted such permission with
respect to MobileMedia's earth stations, on April 3, 1997, the FCC granted such
permission for the assignment of MobileMedia's microwave licenses and on May
26, 1998 and July 17, 1998, the FCC granted such permission with respect to
MobileMedia's paging, air-to-ground and narrowband PCS licenses. In addition,
as noted above, FCC approval of the transfer of MobileMedia's licenses pursuant
to the Merger Agreement and the Amended Plan (on terms that do not impair the
feasibility of the Amended Plan and permit it to be implemented and
consummated) is a condition to effectiveness of the Amended Plan and the
closing of the Merger.
The FCC's review and revision of rules affecting paging companies is ongoing
and the regulatory requirements to which Arch and MobileMedia are subject may
change significantly over time. For example, the FCC has decided to adopt a
market area licensing scheme for all paging channels under which carriers would
be licensed to operate on a particular channel throughout a broad geographic
area (for example, a Major Trading Area as defined by Rand McNally) rather than
being licensed on a site-by-site basis. These geographic area licenses will be
awarded pursuant to auction. Incumbent paging licensees that do not acquire
licenses at auction will be entitled to interference protection from the market
area licensee. Arch and MobileMedia are participating actively in this
proceeding in order to protect their existing operations and retain
flexibility, on an interim and long-term basis, to modify systems as necessary
to meet subscriber demands.
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Currently, however, the Communications Act requires that Arch and MobileMedia
obtain licenses from the FCC to use radio frequencies to conduct their paging
operations at specified locations. FCC licenses issued to Arch and MobileMedia
set forth the technical parameters, such as power strength and tower height,
under which Arch and MobileMedia are authorized to use those frequencies. In
many instances, Arch and MobileMedia require the prior approval of the FCC
before they can implement any significant changes to their radio systems. Once
the FCC's market area licensing rules are implemented, however, these site-
specific licensing obligations will be eliminated, with the exception of
applications still required by Section 22.369 of the FCC rules (request for
authority to operate in a designated Quiet Zone), Section 90.77 (request for
authority to operate in a protected radio receiving location) and Section
1.1301 et seq. (construction/modification that may have a significant
environmental impact) or for coordination with Canada or Mexico.
The FCC has issued a Further Notice of Proposed Rulemaking in which the FCC
seeks comments on, among other matters, whether it should impose coverage
requirements on licensees with nationwide exclusivity (such as Arch and
MobileMedia), whether these coverage requirements should be imposed on a
nationwide or regional basis, and whether--if such requirements are imposed--
failure to meet the requirements should result in a revocation of the entire
nationwide license or merely a portion of the license. If the FCC were to
impose stringent coverage requirements on licensees with nationwide
exclusivity, Arch and MobileMedia might have to accelerate the build-out of
their systems in certain areas.
Telecommunications Act of 1996
The Telecommunications Act directly affects Arch and MobileMedia. Some
aspects of the Telecommunications Act may place financial obligations upon each
of Arch and MobileMedia or subject them to increased competition. For example,
the FCC has adopted new rules that govern compensation to be paid to pay phone
providers which has resulted in increased costs for certain paging services
including toll-free 1-800 number paging. Arch and MobileMedia have generally
passed these costs on to their subscribers, which makes their services more
expensive and which could affect the attraction or retention of customers;
however, there can be no assurance that Arch or MobileMedia will be able to
continue to pass on these costs. These rules are the subject of several
judicial appeals. In addition, the FCC also has adopted new rules regarding
payments by telecommunications companies into a revamped fund that will provide
for the widespread availability of telecommunications services including
Universal Service. Prior to the implementation of the Telecommunications Act,
Universal Service obligations largely were met by local telephone companies,
supplemented by long-distance telephone companies. Under the new rules, all
telecommunications carriers, including paging companies, will be required to
contribute to the Universal Service Fund. In addition, certain state regulatory
authorities have enacted, or have indicated that they intend to enact, similar
contribution requirements based on intrastate revenues. Neither Arch nor
MobileMedia can yet know the impact of these state contribution requirements,
if enacted and applied to Arch and MobileMedia. Moreover, Arch and MobileMedia
are unable at this time to estimate the amount of any such payments that it
will be able to bill to their subscribers; however, payments into the Universal
Service Fund will likely increase the cost of doing business.
Some aspects of the Telecommunications Act could have a beneficial effect on
Arch's and MobileMedia's business. For example, proposed federal guidelines
regarding antenna siting issues may remove local and state barriers to the
construction of communications facilities, although states and municipalities
continue to exercise significant control with regard to such siting issues.
Moreover, in a rulemaking proceeding pertaining to interconnection between
LECs and CMRS providers such as MobileMedia and Arch, the FCC has concluded
that LECs are required to compensate CMRS providers for the reasonable costs
incurred by such providers in terminating traffic that originates on LEC
facilities, and vice versa. Consistent with this ruling, the FCC has determined
that LECs may not charge a CMRS provider or other carrier for terminating LEC-
originated traffic or for dedicated facilities used to deliver LEC-originated
traffic to one-way paging networks. Nor may LECs charge CMRS providers for
number activation and use fees. These interconnection issues are still in
dispute, and it is unclear whether the FCC will maintain its current position.
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Future Regulation
From time to time, legislation which could potentially affect Arch and
MobileMedia, either beneficially or adversely, is proposed by federal or state
legislators. There can be no assurance that legislation will not be enacted by
the federal or state governments, or that regulations will not be adopted or
actions taken by the FCC or state regulatory authorities, which might
materially adversely affect the business of Arch and/or MobileMedia. Changes
such as the allocation by the FCC of radio spectrum for services that compete
with Arch's and MobileMedia's business could adversely affect Arch's and
MobileMedia's results of operations. See "Risk Factors--Risks Common to Arch
and MobileMedia--Government Regulation, Foreign Ownership and Possible
Redemption."
Depending on further FCC disposition of these issues, Arch and MobileMedia
may or may not be successful in securing refunds, future relief or both, with
respect to charges for termination of LEC-originated local traffic. If the FCC
ultimately reaches an unfavorable resolution, then Arch believes that it and
MobileMedia would pursue relief through settlement negotiations, administrative
complaint procedures or both. If these issues are ultimately decided in favor
of the LECs, Arch and MobileMedia likely would be required to pay all past due
contested charges and may also be assessed interest and late charges for
amounts withheld.
Foreign Ownership
The Communications Act limits foreign investment in and ownership of entities
that are licensed as radio common carriers by the FCC. Arch and MobileMedia own
or control several radio common carriers and are accordingly subject to these
foreign investment restrictions. Because Arch and MobileMedia are each
individually parents of radio common carriers (but are not radio common
carriers themselves), Arch and MobileMedia may not have more than 25% of their
stock owned or voted by aliens or their representatives, a foreign government
or its representatives or a foreign corporation if the FCC finds that the
public interest would be served by denying such ownership. In connection with
the WTO Agreement--agreed to by 69 countries--the FCC adopted rules effective
February 9, 1998 that create a very strong presumption in favor of permitting a
foreign interest in excess of 25% if the foreign investor's home market country
signed the WTO Agreement. Arch's and MobileMedia's subsidiaries that are radio
common carrier licensees are subject to more stringent requirements and may
have only up to 20% of their stock owned or voted by aliens or their
representatives, a foreign government or their representatives or a foreign
corporation. This ownership restriction is not subject to waiver. See "Industry
Overview--Regulation". The Arch Certificate permits the redemption of shares of
Arch's capital stock from foreign stockholders where necessary to protect FCC
licenses held by Arch or its subsidiaries, but such redemption would be subject
to the availability of capital to Arch and any restrictions contained in
applicable debt instruments and under the DGCL (which currently would not
permit any such redemptions). The failure to redeem such shares promptly could
jeopardize the FCC licenses held by Arch or its subsidiaries (including
MobileMedia following the Merger). See "--Competition", "--Regulation" and
"Risk Factors--Risks Common to Arch and MobileMedia--High Degree of Leverage
After the Merger".
STATE REGULATION
In addition to regulation by the FCC, certain states impose various
regulations on the common carrier paging operations of Arch and MobileMedia.
Regulation in some states historically required Arch and MobileMedia to obtain
certificates of public convenience and necessity before constructing, modifying
or expanding paging facilities or offering or abandoning paging services.
Rates, terms and conditions under which Arch and MobileMedia provided services,
or any changes to those rates, have also been subject to state regulation.
However, as a general rule, states are preempted from exercising rate and entry
regulation of CMRS, but may choose to regulate other terms and conditions of
service (for example, requiring the identification of an agent to receive
complaints). States also are accorded an opportunity to petition the FCC for
authority to continue to regulate CMRS rates if certain conditions are met.
State filings seeking rate authority have all been denied by the FCC, although
new petitions seeking such authority may be filed in the future. The preemption
of state entry regulation was confirmed in the Telecommunications Act. In
certain instances, the construction and operation of radio transmitters also
will be subject to zoning, land use, public health and safety, consumer
protection and other state and local taxes, levies and ordinances. Further,
some states and localities continue to exert jurisdiction over (i) approval of
acquisitions and transfers of wireless systems; and (ii) resolution of consumer
complaints. Arch and MobileMedia believe that to date all required filings for
Arch's and MobileMedia's paging operations have been made.
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BUSINESS
ARCH
Arch is a leading provider of wireless messaging services, primarily paging
services, and is the third largest paging company in the United States (based
on pagers in service). Arch had 4.2 million pagers in service at September 30,
1998. Arch operates in 41 states and more than 180 of the 200 largest markets
in the United States. Arch offers local, regional and nationwide paging
services employing digital networks covering approximately 85% of the United
States population. Arch offers four types of paging services through its
networks: digital display, alphanumeric display, tone-only and tone-plus-voice.
Arch also offers enhanced and complementary services, including voice mail,
personalized greeting, message storage and retrieval, pager loss protection and
pager maintenance.
Arch has achieved significant growth in pagers in service and operating cash
flow through a combination of internal growth and acquisitions. From January 1,
1995 through September 30, 1998, Arch's total number of subscribers grew at a
compound rate on an annualized basis of 73.1%. For the same period on an
annualized basis, Arch's compound rate of internal subscriber growth (excluding
pagers added through acquisitions) was 52.8%. From commencement of operations
in September 1986, Arch has completed 33 acquisitions representing an aggregate
of 1.7 million pagers in service at the time of purchase.
The following table sets forth certain information regarding the approximate
number of pagers in service with Arch subscribers and net increases in number
of pagers through internal growth and acquisitions during the periods
indicated:
<TABLE>
<CAPTION>
PAGERS IN SERVICE NET INCREASE IN
AT BEGINNING OF PAGERS THROUGH INCREASE IN PAGERS PAGERS IN SERVICE
YEAR ENDED AUGUST 31, PERIOD INTERNAL GROWTH(1) THROUGH ACQUISITIONS(2) AT END OF PERIOD
- --------------------- ----------------- ------------------ ----------------------- -----------------
<S> <C> <C> <C> <C>
1987.................... 4,000 3,000 12,000 19,000
1988.................... 19,000 8,000 3,000 30,000
1989.................... 30,000 14,000 34,000 78,000
1990.................... 78,000 20,000 4,000 102,000
1991.................... 102,000 24,000 1,000 127,000
1992.................... 127,000 33,000 -- 160,000
1993.................... 160,000 70,000 24,000 254,000
1994.................... 254,000 138,000 18,000 410,000
<CAPTION>
FOUR MONTHS ENDED DECEMBER 31,
- ------------------------------
<S> <C> <C> <C> <C>
1994.................... 410,000 64,000 64,000 538,000
<CAPTION>
YEAR ENDED DECEMBER 31,
- -----------------------
<S> <C> <C> <C> <C>
1995.................... 538,000 366,000 1,102,000 2,006,000
1996.................... 2,006,000 815,000 474,000 3,295,000
1997.................... 3,295,000 595,000 -- 3,890,000
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
- -------------------------------
<S> <C> <C> <C> <C>
1998.................... 3,890,000 321,000 -- 4,211,000
</TABLE>
- ---------------------
(1) Includes internal growth in acquired paging businesses after their
acquisition by Arch. Increases in pagers through internal growth are net of
subscriber cancellations during each applicable period.
(2) Based on pagers in service of acquired paging businesses at the time of
their acquisition by Arch.
BUSINESS STRATEGY
Arch's strategic objective is to strengthen its position as one of the
leading nationwide paging companies in the United States. Arch believes that
larger, multi-market paging companies enjoy a number of competitive advantages,
including: (i) operating efficiencies resulting from more intensive utilization
of existing paging systems; (ii) economies of scale in purchasing and
administration; (iii) broader geographic coverage of paging
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systems; (iv) greater access to capital markets and lower costs of capital;
(v) the ability to obtain additional radio spectrum; (vi) the ability to offer
high-quality services at competitive prices; and (vii) enhanced ability to
attract and retain management personnel. Arch believes that the current size
and scope of its operations afford it many of these advantages, and that it
has the scope and presence to effectively compete on a national level. In
addition, Arch believes that the paging industry will undergo further
consolidation, and Arch expects to participate in such consolidation.
Arch's operating objectives are to increase its EBITDA, deploy its capital
efficiently, reduce its financial leverage and expand its customer
relationships. Arch pursues the following strategies to achieve its operating
objectives:
Low-Cost Operating Structure. Arch has selected a low-cost operating
strategy as its principal competitive tactic. Arch believes that a low-cost
operating structure, compared to the other two fundamental competitive
tactics in the paging industry (differentiated premium pricing and niche
positioning), maximizes its flexibility to offer competitive prices while
still achieving target margins and EBITDA. Arch maintains a low-cost
operating structure through a combination of (i) the consolidation of
certain operating functions, including centralized purchases from key
vendors, to achieve economies of scale, and (ii) the installation of
technologically advanced, reliable, transmission systems. In June 1998, the
Arch Board approved the Divisional Reorganization, as part of which Arch
plans, over a period of 18 to 24 months, to consolidate its seven operating
divisions into four operating divisions and consolidate certain regional
administrative support functions, resulting in various operating
efficiencies. The Divisional Reorganization, once fully implemented, is
expected to result in annual cost savings of approximately $15.0 million
(approximately $11.5 million for salary and employee benefits and $3.5
million for lease obligations). See "Arch Management's Discussion and
Analysis of Financial Condition and Results of Operations".
Efficient Capital Deployment. Arch's principal financial objective is to
reduce financial leverage by reducing capital requirements and increasing
EBITDA. To reduce capital expenditures, Arch has implemented a company-wide
focus on the sale, rather than lease, of pagers, since subscriber-owned
units require a lower level of capital investment than Arch-owned units. As
a result of these efforts, the number of subscriber-owned pagers, as a
percentage of net new pagers in service, increased from 53.7% in the nine
months ended September 30, 1997 to 70.1% in the nine months ended September
30, 1998. In addition, Arch has modified its incentive compensation
programs for line managers so that bonuses are based, in part, on capital
efficiency.
Fast Follower on N-PCS Opportunities. Consistent with its low-cost
provider competitive tactic, Arch has focused its capital and marketing
resources on one-way paging and other enhanced services rather than N-PCS
services. However, Arch recognizes the potential benefits to current and
prospective customers and the associated market opportunities from certain
N-PCS applications, such as two-way text and voice messaging services. Arch
has taken steps to position itself to participate in new and emerging N-PCS
services and applications, including marketing N-PCS services as a reseller
and its 49.9% equity interest in Benbow. See "--Investments in Narrowband
PCS Licenses".
Exploit Revenue Enhancement Opportunities. Arch believes there are a
number of new revenue opportunities associated with its 4.2 million pagers
in service, including increasing the proportion of subscribers utilizing
alphanumeric display services, which generate higher revenue, and selling
value-added, non-facilities-based enhanced services such as voicemail,
resale of long-distance service and fax storage and retrieval. See "--
Paging and Messaging Services, Products and Operations".
PAGING AND MESSAGING SERVICES, PRODUCTS AND OPERATIONS
Arch currently provides four basic types of paging services: digital
display, alphanumeric display, tone-only and tone-plus-voice. Depending upon
the type of pager used, a subscriber may receive information displayed or
broadcast by the pager or may receive a signal from the pager indicating that
the subscriber should call a prearranged number or a company operator to
retrieve a message.
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A digital display pager permits a caller to transmit to the subscriber a
numeric message that may consist of a telephone number, an account number or
coded information, and has the capability to store several such numeric
messages in memory for later recall by the subscriber. An alphanumeric display
pager allows subscribers to receive and store messages consisting of both
numbers and letters. A tone-only pager notifies the subscriber that a call has
been received by emitting an audible beeping sound or vibration. A tone-plus-
voice pager emits a beeping sound followed by a brief voice message. Arch
provides digital display, alphanumeric display and tone-only service in all of
its markets and tone-plus-voice service in only a few markets.
Digital display paging service, which was introduced by the paging industry
nearly 20 years ago, has in recent years grown at a faster rate than tone-only
or tone-plus-voice service and currently represents a majority of all pagers in
service. The growth of alphanumeric display service, which was introduced in
the mid-1980s, has been constrained by its difficult data-input and specialized
equipment requirements and its relatively high use of system capacity during
transmission. The following table summarizes the types of Arch's pagers in
service at the dates indicated:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------------- SEPTEMBER 30,
1995 1996 1997 1998
------------- ------------- ------------- -------------
UNITS % UNITS % UNITS % UNITS %
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Digital display......... 1,755,000 87% 2,796,000 85% 3,284,000 85% 3,536,000 84%
Alphanumeric display.... 171,000 9 395,000 12 524,000 13 603,000 14
Tone-only............... 37,000 2 54,000 2 43,000 1 38,000 1
Tone-plus-voice......... 43,000 2 50,000 1 39,000 1 34,000 1
--------- --- --------- --- --------- --- --------- ---
Total.................. 2,006,000 100% 3,295,000 100% 3,890,000 100% 4,211,000 100%
========= === ========= === ========= === ========= ===
</TABLE>
Arch provides paging service to subscribers for a monthly fee. Subscribers
either lease the pager from Arch for an additional fixed monthly fee or they
own the pager, having purchased it either from Arch or from another vendor. The
monthly service fee is generally based upon the type of service provided, the
geographic area covered, the number of pagers provided to the customer and the
period of the subscriber's commitment. Subscriber-owned pagers provide a more
rapid recovery of Arch's capital investment than pagers owned and maintained by
Arch, but may generate less recurring revenue. Arch also sells pagers to third-
party resellers who lease or resell pagers to their own subscribers and resell
Arch's paging services under marketing agreements. The following table
summarizes the number of Arch-owned and leased, subscriber-owned and reseller-
owned pagers in service at the dates indicated:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------------------- SEPTEMBER 30,
1995 1996 1997 1998
------------- ------------- ------------- -------------
UNITS % UNITS % UNITS % UNITS %
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Arch-owned and leased... 902,000 45% 1,533,000 47% 1,740,000 45% 1,836,000 44%
Subscriber-owned........ 596,000 30 914,000 28 1,087,000 28 1,130,000 27
Reseller-owned.......... 508,000 25 848,000 25 1,063,000 27 1,245,000 29
--------- --- --------- --- --------- --- --------- ---
Total.................. 2,006,000 100% 3,295,000 100% 3,890,000 100% 4,211,000 100%
========= === ========= === ========= === ========= ===
</TABLE>
Arch provides enhancements and ancillary services such as voice mail,
personalized greetings, message storage and retrieval, pager loss protection
and pager maintenance services. Voice mail allows a caller to leave a recorded
message that is stored in Arch's computerized message retrieval center. When a
message is left, the subscriber can be automatically alerted through the
subscriber's pager and can retrieve the stored message by calling Arch's paging
terminal. Personalized greetings allow the subscriber to record a message to
greet callers who reach the subscriber's pager or voice mail box. Message
storage and retrieval allows a subscriber who leaves Arch's service area to
retrieve calls that arrived during the subscriber's absence from the service
area. Pager loss protection allows subscribers who lease pagers to limit their
costs of replacement upon loss or destruction of a pager. Pager maintenance
services are offered to subscribers who own their own equipment. Arch is also
in the process of test marketing various non-facilities-based value-added
services that can be integrated with existing paging services. These include,
among other services, voicemail, resale of long distance service and fax
storage and retrieval.
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INVESTMENTS IN NARROWBAND PCS LICENSES
Arch has taken the following steps to position itself to participate in new
and emerging N-PCS services and applications.
Benbow PCS Ventures, Inc. In connection with Arch's May 1996 acquisition of
Westlink, Arch acquired a 49.9% equity interest in Benbow PCS Ventures, Inc.,
which holds (through Page Call, Inc.) exclusive rights to a 50 KHz
outbound/12.5 KHz inbound N-PCS license in each of the five regions of the
United States. Benbow is a "designated entity" (a small, minority-controlled or
female-controlled business) under FCC rules and is entitled to discounts and
installment payment schedules in the payment of its N-PCS licenses. Arch has
the right to designate one of Benbow's three directors and has veto rights with
respect to specified major business decisions by Benbow. Arch is obligated, to
the extent such funds are not available to Benbow from other sources and
subject to the approval of Arch's designee on Benbow's Board of Directors, to
advance to Benbow sufficient funds to service debt obligations incurred by
Benbow in connection with the acquisition of its N-PCS licenses and to finance
construction of an N-PCS system. The total purchase price for Benbow's licenses
(together with the purchase price of licenses acquired from Page Call), net of
the discounts, was $42.5 million. Arch estimates that the total cost to Benbow
of servicing its license-related debt obligations and constructing such N-PCS
system (including the effect of the Page Call acquisition) will be
approximately $100.0 million over the next five years. Arch's advances to
Benbow are secured by Benbow's assets, bear interest at an interest rate equal
to that paid by Arch on its senior debt, are due on demand and must be repaid
prior to any distribution of profits by Benbow. With certain exceptions, Arch
has agreed not to exercise its right to demand repayment of such advances prior
to the occurrence of a default. As of September 30, 1998, Arch had advanced
approximately $20.0 million to Benbow.
Pursuant to a five-year agreement with Benbow expiring on October 1, 2000,
Arch provides, subject to Benbow's ultimate control, management services and is
paid a management fee and is reimbursed for its expenses. Arch also has a right
of first refusal to provide Benbow with design, engineering and construction
services for its N-PCS system as well as to lease certain equipment to Benbow
for use in connection with such system. Arch has a right of first refusal with
respect to any transfer of shares held by Ms. June Walsh, who holds the
remaining 50.1% equity interest in Benbow, and Ms. Walsh has the right to
require Arch, commencing January 23, 2000 (or sooner under certain
circumstances), to repurchase (subject to prior FCC approval) her Benbow shares
for an amount equal to the greater of (i) an amount between $3.5 million and
$5.0 million, depending on the timing and circumstances under which Ms. Walsh
exercises her put option, and (ii) the fair market value of her shares (as
determined by arbitration absent agreement of the parties). If Arch exercises
its right of first refusal or Ms. Walsh exercises her put option, Benbow could
lose some of the benefits of the discounts and installment payment schedules
for its FCC payments unless another "designated entity" acquired control of
Benbow under FCC rules. See Note 1 of Notes to Arch's Consolidated Financial
Statements included elsewhere herein.
Benbow needs to construct its N-PCS system (or make other arrangements)
before it can offer N-PCS services. Benbow has indicated that it plans to roll
out its services over time to reach approximately one-third of the population
in the licensed areas by the end of 1999. Benbow's network will use a Reflex 25
paging protocol. Arch believes that Benbow will provide Arch with a platform
for a new generation of wireless messaging services, including two-way
messaging and other enhanced services, and that the value of its Benbow
relationship was significantly enhanced by the completion of the Page Call
acquisition. Arch has yet to determine how to best integrate its N-PCS strategy
with respect to Benbow and that of MobileMedia's intent to deploy its N-PCS
Spectrum which has already been funded.
On June 29, 1998, Benbow acquired Page Call's outstanding stock by issuing to
Page Call's former stockholders preferred stock and a promissory note in the
aggregate face amount of $17.2 million with a 12% annual return. At the time of
the closing, Benbow entered into a five-year consulting agreement with one of
Page Call's stockholders requiring consulting payments in the aggregate amount
of $911,000. Benbow's preferred stock and promissory note are exchangeable for
Arch Common Stock (i) at any time at the option of the holders
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thereof, at an exchange price equal to the higher of (A) $13.00 per share or
(B) the market price of Arch's Common Stock, (ii) mandatorily on April 8,
2000, at the then prevailing market price of Arch Common Stock, or (iii)
automatically at an exchange price of $13.00 per share, if the market price of
Arch Common Stock equals or exceeds $13.00 for 20 consecutive trading days.
Arch is permitted to require Benbow to redeem its preferred stock and
promissory note at any time for cash. Arch entered into guarantees (payable in
Arch's Common Stock or cash, at Arch's election) of all obligations of Benbow
under the Benbow preferred stock, promissory note and consulting agreement
described above. Benbow's redemption of its preferred stock and promissory
note for cash, or Arch's payment of cash pursuant to its guarantees of
Benbow's preferred stock and promissory note, would be subject to the
availability of capital and any restrictions contained in applicable debt
instruments and under the DGCL (which currently would not permit any such cash
redemptions or payments). If Arch issues Arch Common Stock or pays cash
pursuant to its guarantees, Arch will receive from Benbow a promissory note
and non-voting, non-convertible preferred stock of Benbow with an annual yield
of 14.5% payable upon an acquisition of Benbow or earlier to the extent that
available cash and applicable law permit. Page Call's stockholders received
customary registration rights with respect to any shares of Arch's Common
Stock issued in exchange for Benbow's preferred stock and promissory note or
pursuant to Arch's guarantees thereof.
CONXUS Communications, Inc. Arch currently holds a 10.5% equity interest in
CONXUS Communications, Inc., formerly known as PCS Development Corporation,
which holds exclusive rights to a 50 KHz outbound/50 KHz inbound two-way
messaging license throughout the United States. Conxus, like Benbow, is a
"designated entity" under FCC rules and is entitled to discounts and
installment payment schedules.
Each stockholder of Conxus is entitled to purchase services from Conxus at
"most favored customer" rates, based on like services. Conxus and Arch have
agreed to negotiate in good faith to enter into mutually acceptable
intercarrier, network access and similar agreements. If Arch wishes to
purchase N-PCS services of the kind offered by Conxus, Arch has agreed to
contract exclusively with Conxus for such services so long as such services
are competitive in price and quality with comparable services offered by
others. Arch is currently acting as a reseller of voice messaging services
through Conxus in a limited number of markets.
SUBSCRIBERS AND MARKETING
Arch's paging accounts are generally businesses with employees who travel
frequently but must be immediately accessible to their offices or customers.
Arch's subscribers include proprietors of small businesses, professionals,
management and medical personnel, field sales personnel and service forces,
members of the construction industry and trades, and real estate brokers and
developers. Arch believes that pager use among retail consumers will increase
significantly in the future, although consumers do not currently account for a
substantial portion of Arch's subscriber base.
Although today Arch operates in more than 180 of the 200 largest U.S.
markets, Arch historically has focused on medium-sized and small market areas
with lower rates of pager penetration and attractive demographics. Arch
believes that such markets will continue to offer significant opportunities
for growth, and that its national scope and presence will also provide Arch
with growth opportunities in larger markets.
Arch markets its paging services through a direct marketing and sales
organization which, as of September 30, 1998, operated approximately 200
retail stores. Arch also markets its paging services indirectly through
independent resellers, agents and retailers. Arch typically offers resellers
paging services in large quantities at wholesale rates that are lower than
retail rates, and resellers offer the services to end-users at a markup.
Arch's costs of administering and billing resellers are lower than the costs
of direct end-users on a per pager basis.
Arch also acts as a reseller of other paging carriers' services when
existing or potential Arch customers have travel patterns that require paging
service beyond the coverage of Arch's own networks.
In May 1997, Arch established a single national identity, Arch Paging, for
its paging services which previously had been marketed under various
trademarks. As part of this branding initiative, Arch adopted a new
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corporate logo, a corporate-wide positioning strategy tied to customer service
delivery, and launched its Internet Web site at www.arch.com. Arch believes
that its unified branding identity will give the Arch name national exposure
for the first time and result in significant economic leverage in its marketing
and communications efforts.
COMPETITION
See "Industry Overview--Competition".
REGULATION
See "Industry Overview--Regulation".
SOURCES OF EQUIPMENT
Arch does not manufacture any of the pagers or other equipment used in its
paging operations. The equipment used in Arch's paging operations is generally
available for purchase from multiple sources. Arch centralizes price and
quantity negotiations for all of its operating subsidiaries in order to achieve
cost savings from volume purchases. Arch buys pagers primarily from Motorola
and NEC and purchases terminals and transmitters primarily from Glenayre and
Motorola. Arch anticipates that equipment and pagers will continue to be
available in the foreseeable future, consistent with normal manufacturing and
delivery lead times. See "Risk Factors--Risks Common to Arch and MobileMedia--
Dependence on Third Parties".
Because of the high degree of compatibility among different models of
transmitters, computers and other paging equipment manufactured by suppliers,
Arch is able to design its systems without being dependent upon any single
source of such equipment. Arch routinely evaluates new developments in paging
technology in connection with the design and enhancement of its paging systems
and selection of products to be offered to subscribers. Arch believes that its
paging system equipment is among the most technologically sophisticated in the
paging industry.
EMPLOYEES
At September 30, 1998, Arch employed approximately 2,700 persons. None of
Arch's employees is represented by a labor union. Arch believes that its
employee relations are good. As part of the Divisional Reorganization, Arch
anticipates a net reduction of approximately 10% of its workforce. See
"Business--Arch Management's Discussion and Analysis of Financial Condition and
Results of Operations--Divisional Reorganization".
TRADEMARKS
Arch owns the service marks "Arch" and "Arch Paging", and holds a federal
registration for the service mark "Arch Nationwide Paging" as well as various
other trademarks.
PROPERTIES
At September 30, 1998, Arch owned five office buildings and leased office
space (including its executive offices) in over 200 localities in 35 states for
use in conjunction with its paging operations. Arch leases transmitter sites
and/or owns transmitters on commercial broadcast towers, buildings and other
fixed structures in approximately 3,200 locations in 45 states. Arch's leases
are for various terms and provide for monthly lease payments at various rates.
Arch believes that it will be able to obtain additional space as needed at
acceptable cost. In April 1998, Arch announced the Tower Site Sale pursuant to
which Arch is selling communications towers, real estate, site management
contracts and/or leasehold interests involving 133 sites (including one site
acquired from entities affiliated with Benbow) in 22 states, and will lease
back space on the towers on which it currently operates communications
equipment to service its own paging network. Arch held the initial closing on
112
<PAGE>
June 26, 1998 and expects to complete the transaction in the fourth quarter of
1998. As part of the Divisional Reorganization, Arch will close certain office
locations and redeploy other real estate assets. See "Business--Arch
Management's Discussion and Analysis of Financial Condition and Results of
Operations--Divisional Reorganization".
LITIGATION
Arch, from time to time, is involved in lawsuits arising in the normal course
of business. Arch believes that its currently pending lawsuits will not have a
material adverse effect on Arch.
ARCH MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
individuals who are the directors and executive officers of Arch.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
C. Edward Baker, Jr..... 48 Chairman of the Board, Chief Executive Officer and Director
Lyndon R. Daniels....... 45 President and Chief Operating Officer
John B. Saynor.......... 58 Executive Vice President and Director
J. Roy Pottle........... 39 Executive Vice President and Chief Financial Officer
Paul H. Kuzia........... 56 Executive Vice President/Technology and Regulatory Affairs
R. Schorr Berman(1)(2).. 50 Director
James S. Hughes(1)...... 56 Director
Allan L. Rayfield(2).... 63 Director
John A. Shane(1)(2)..... 65 Director
John Kornreich.......... 52 Director
</TABLE>
- --------
(1) Member of the Audit Committee of Arch.
(2) Member of the Executive Compensation and Stock Option Committee of Arch.
C. EDWARD BAKER, JR. has served as Chief Executive Officer and a director of
Arch since 1988 and of ACI since 1995. Mr. Baker became Chairman of the Board
of Arch in 1989 and of ACI in 1995. He also served as President of Arch from
1988 to January 1998 and of ACI from 1995 to January 1998. From 1986 until
joining Arch in March 1988, Mr. Baker was President and Chief Executive Officer
of US West Paging.
LYNDON R. DANIELS joined Arch and ACI in January 1998 as President and Chief
Operating Officer. From November 1993 to January 1998, Mr. Daniels was the
President and Chief Executive Officer of Pacific Bell Mobile Services, a
subsidiary of SBC Communications Inc. From May 1988 until November 1993, Mr.
Daniels was the Chief Financial Officer of Pactel Corp., a mobile telephone
company.
JOHN B. SAYNOR has served as a director of Arch since 1988 and of ACI since
1995. Mr. Saynor has served as Executive Vice President of ACI since 1995 and
of Arch since 1990. Mr. Saynor is a founder of Arch and served as President and
Chief Executive Officer of Arch from 1986 to March 1988 and as Chairman of the
Board from 1986 until May 1989.
J. ROY POTTLE joined Arch and ACI in February 1998 as Executive Vice
President and Chief Financial Officer. From October 1994 to February 1998, Mr.
Pottle was Vice President/Treasurer of Jones Intercable, Inc., a cable
television operator. From September 1989 to October 1994, he served as Vice
President and Relationship Manager at The Bank of Nova Scotia, New York Agency.
PAUL H. KUZIA has served as Executive Vice President/Technology and
Regulatory Affairs of Arch and ACI since September 1996. He served as Vice
President/Engineering and Regulatory Affairs of Arch from 1988 to September
1996 and of ACI from 1995 to September 1996. Prior to 1988, Mr. Kuzia was
director of operations at Message Center Inc.
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<PAGE>
R. SCHORR BERMAN has been a director of Arch since 1986 and of ACI since
1995. Since 1987, he has been the President and Chief Executive Officer of MDT
Advisers, Inc., an investment adviser. He is a director of Mercury Computer
Systems, Inc. as well as a number of private companies.
JAMES S. HUGHES has been a director of Arch since 1986 and of ACI since 1995.
Since 1987, he has been President and Chief Executive Officer of Norwich
Corporation, a real estate investment and service firm, and, since 1992, he has
served as President and Managing Director of Inventa Corporation, an
international business development firm.
ALLAN L. RAYFIELD has been a director of Arch since 1997 and of ACI since
1998. He has been a consultant since 1995. From November 1993 until December
1994, Mr. Rayfield served as Chief Executive Officer of M/A Com Inc., a
microwave electrical manufacturing company. From April 1991 until November
1993, he served as Chief Operating Officer of M/A Com Inc. He is a director of
Parker Hannifin Corporation and Acme Metals Incorporated.
JOHN A. SHANE has been a director of Arch since 1988 and of ACI since 1995.
He has been the President of Palmer Service Corporation since 1972. He has been
a general partner of Palmer Partners L.P., a venture capital firm, since 1981.
He serves as a director of Overland Data, Inc., Summa Four, Inc., United Asset
Management Corporation and Gensym Corporation and as a trustee of Nvest Funds.
JOHN KORNREICH has been a director of Arch and ACI since June 1998. Mr.
Kornreich has served as a Managing Director of Sandler Capital Management Co.,
Inc. since 1988.
The Arch Certificate and the Arch By-Laws provide that Arch has a classified
Board of Directors composed of three classes, each of which serves for three
years, with one class being elected each year. The term of Messrs. Hughes and
Rayfield will expire at Arch's annual meeting of stockholders to be held in
1999, the term of Messrs. Saynor and Shane will expire at Arch's annual meeting
of stockholders to be held in 2000 and the term of Messrs. Baker, Berman and
Kornreich will expire at Arch's annual meeting of stockholders to be held in
2001.
In connection with the Merger, designees of W.R. Huff and Whippoorwill are
expected to be elected to the Arch Board and the Board of Directors of ACI at
the Effective Time. See "The Merger Agreement--Related Agreements--Standby
Purchase Agreements". The expected nominees are:
EDWIN M. BANKS, age 36, has been employed by W.R. Huff since 1988 and
currently serves as a portfolio manager. From 1985 until he joined W.R. Huff,
Mr. Banks was employed by Merrill Lynch & Company. Mr. Banks received his B.A.
degree from Rutgers College and his MBA degree from Rutgers University. Mr.
Banks also serves as a director of Magellan Health Services, formerly Charter
Medical Corporation, and e.spire Corporation (formerly American Communications
Services, Inc.).
H. SEAN MATHIS, age 51, has been Chairman of the Board and Chief Executive
Officer of Allis Chalmers, Inc. since January 1996 and previously served as a
Vice President of such company since 1989. From July 1996 to September 1997,
Mr. Mathis was Chairman of the Board of Universal Gym Equipment Inc., a
privately owned company which filed for protection under the Bankruptcy Code in
July 1997. From 1991 to 1993, Mr. Mathis was President of RCL Acquisition
Corp., and from 1993 to 1995 he was President and a director of RCL Capital
Corporation, which was merged into DISC Graphics in November 1995. Previously,
Mr. Mathis was a director and Chief Operating Officer of Ameriscribe
Corporation. Mr. Mathis was the President of a predecessor to, and currently is
a director of, Allied Digital Technologies. He is also a director of Thousand
Trails, Inc.
The holders of Series C Preferred Stock have the right, voting as a separate
class, to elect one member of the Board of Directors of Arch and ACI, and such
director will have the right to be a member of any committee of such Boards of
Directors. Mr. Kornreich is currently the director elected by the holders of
Series C Preferred Stock.
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<PAGE>
Arch's executive officers are elected by the Arch Board and hold office until
their successors are elected or until their earlier death, resignation or
removal.
Certain of Arch's executive officers have entered into non-competition
agreements with Arch which provide that, for a minimum period of one year
following termination, they will not compete with Arch nor, for a period of
three years following termination, recruit or hire any other Arch employee.
Arch has formed an offshore corporation to pursue wireless messaging
opportunities in Latin America. Arch and an entity owned by Mr. Hughes each
contributed $250,000 to this offshore corporation and each owns 13.3% of its
equity.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Arch and three other entities have co-founded an offshore corporation to
pursue wireless messaging opportunities in Latin America. Arch and Mr. Hughes
each contributed $250,000 to this offshore corporation and each owns 13.3% of
its equity.
Between August 6, 1998 and October 28, 1998, the Arch Board approved three
full recourse, unsecured demand loans totaling $279,500 from Arch to C. Edward
Baker, Jr. The loans bear interest at approximately 5% annually.
BOARD COMMITTEES
The Arch Board has an Audit Committee and an Executive Compensation and Stock
Option Committee. There is no standing nominating committee of the Arch Board.
The Audit Committee reviews the annual consolidated financial statements of
Arch and its subsidiaries prior to their submission to the Arch Board and
consults with Arch's independent public accountants to review financial
results, internal financial controls and procedures, audit plans and
recommendations. The Audit Committee also recommends the selection, retention
or termination of independent public accountants and approves services provided
by independent public accountants prior to the provision of such services. The
Executive Compensation and Stock Option Committee recommends to Arch's Board
the compensation of executive officers, key managers and directors and
administers Arch's stock option plans.
INDEMNIFICATION AND DIRECTOR LIABILITY
The Arch Certificate provides that Arch will, to the fullest extent permitted
by the DGCL, indemnify all persons whom it has the power to indemnify against
all costs, expenses and liabilities incurred by them by reason of having been
officers or directors of Arch, any subsidiary of Arch or any other corporation
for which such persons acted as an officer or director at the request of Arch.
The Arch Certificate also provides that the directors of Arch will not be
personally liable for monetary damages to Arch or its stockholders for any act
or omission, provided that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
Arch or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (relating to illegal dividends or stock redemptions) or
(iv) for any transaction from which the director derived an improper personal
benefit. If the DGCL is amended to permit further elimination or limitation of
the personal liability of directors, then the liability of a director of Arch
shall be eliminated or limited to the fullest extent permitted by the DGCL as
so amended.
115
<PAGE>
ARCH EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth certain information with respect to the annual
and long-term compensation of Arch's Chief Executive Officer and other
executive officers (the "Named Executive Officers") for the years ended
December 31, 1995, 1996 and 1997:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
ANNUAL COMPENSATION COMPENSATION
--------------------------------------- --------------
OTHER ANNUAL
NAME AND PRINCIPAL POSITION DURING 1997 YEAR SALARY $ BONUS $(1) COMPENSATION ($)(2) OPTIONS (#)(3)
- --------------------------------------- ---- -------- ---------- ------------------- --------------
<S> <C> <C> <C> <C> <C>
C. Edward Baker, Jr...... 1997 $353,317 $227,500 $600 459,324(4)
Chairman, President and 1996 329,050 36,833 600 268,860(5)(6)
Chief Executive Officer 1995 281,650 106,000 600 40,000(7)
Lyndon R. Daniels........ 1997 -- -- -- --
President and Chief
Operating Officer
(joined Arch in January
1998)
J. Roy Pottle............ 1997 -- -- -- --
Executive Vice President
and Chief Financial
Officer (joined Arch in
February 1998)
John B. Saynor........... 1997 153,188 72,900 600 51,810(8)
Executive Vice President 1996 146,867 15,300 600 20,000(6)
1995 131,870 50,000 600 20,000(7)
Paul H. Kuzia............ 1997 157,633 77,400 600 86,574(9)
Executive Vice
President/Technology 1996 133,800 14,620 600 8,000(6)
and Regulatory Affairs 1995 123,300 46,000 600 8,000(7)
William A. Wilson........ 1997 133,599 150,500 600 32,836
Former Executive Vice
President and 1996 203,133 19,833 600 170,000(10)
Chief Financial
Officer(11) 1995 157,300 58,000 600 20,000(7)
</TABLE>
- --------
(1) Represents bonus paid in such fiscal year with respect to prior year.
(2) Represents Arch's matching contributions paid under Arch's 401(k) plan.
(3) No restricted stock awards or stock appreciation rights ("SARs") were
granted to any of the Named Executive Officers during the years ended
December 31, 1995, 1996 or 1997.
(4) Includes options to purchase 409,688 shares granted as part of Arch's
January 16, 1998 option repricing program.
(5) Includes options to purchase 106,860 shares replaced in connection with
Arch's October 23, 1996 option repricing program.
(6) Option replaced in connection with Arch's January 16, 1998 option
repricing program.
(7) Option replaced in connection with Arch's October 23, 1996 option
repricing program.
(8) Includes options to purchase 35,905 shares granted as part of Arch's
January 16, 1998 option repricing program.
(9) Includes options to purchase 69,687 shares granted as part of Arch's
January 16, 1998 option repricing program.
(10) Includes options to purchase 75,000 shares replaced in connection with
Arch's October 23, 1996 option repricing program.
(11) Mr. Wilson resigned on June 30, 1997.
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<PAGE>
EXECUTIVE RETENTION AGREEMENTS
Arch is a party to Executive Retention Agreements (the "Retention
Agreements") for a total of 16 executives (the "Arch Executives"), including
Messrs. Baker, Daniels, Kuzia, Pottle and Saynor.
The purpose of the Retention Agreements is to assure the continued employment
and dedication of the Arch Executives without distraction from the possibility
of a Change in Control (as defined in the Retention Agreements) of Arch. In the
event of a Change in Control, and the termination of the Arch Executive's
employment by Arch at any time within the 12-month period thereafter (other
than for cause, disability or death) or by the Arch Executive for Good Reason
(as defined in the Retention Agreements), the Arch Executive shall be eligible
to receive (i) a cash severance payment equal to the Arch Executive's base
salary plus any other amounts earned through the date of termination (to the
extent not previously paid), (ii) an additional lump sum cash payment equal to
a specified multiple of the sum of (a) the Arch Executive's annual base salary
in effect at the time of the Change in Control and (b) the average bonus paid
for the three calendar years immediately preceding the calendar year during
which the Change in Control occurs, and (iii) any amounts or benefits required
to be paid or provided to the Arch Executive or which the Arch Executive is
eligible to receive following the Arch Executive's termination under any plan,
program, policy, practice, contract or agreement of Arch. In addition, until
the earlier of (a) 12 months after termination or (b) the Arch Executive
becomes reemployed with another employer and is eligible to receive
substantially equivalent benefits, to arrange to provide the Arch Executive
with life, disability, accident and health insurance benefits similar to those
previously maintained. The multiple for Messrs. Baker, Daniels, Kuzia, Pottle
and Saynor is three, and the multiple for the other Arch Executives is one or
two. Good Reason is defined to include, among other things, a material
reduction in employment responsibilities, compensation or benefits or, in the
case of Mr. Baker, the failure to become the Chief Executive Officer of any
entity succeeding or controlling Arch.
STOCK OPTION GRANTS
The following table summarizes certain information regarding options granted
to the Named Executive Officers during the year ended December 31, 1997. No
Stock Appreciation Rights were granted during the year ended December 31, 1997.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL
REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF
STOCK PRICE
APPRECIATION
INDIVIDUAL GRANTS FOR OPTIONS TERM(3)
-------------------------------------------------- -------------------
PERCENT OF
TOTAL
OPTIONS/SARS
OPTIONS/SARS GRANTED TO EXERCISE OR
GRANTED EMPLOYEE IN BASE PRICE EXPIRATION
(#)(1) FISCAL YEAR ($/SHARE)(2) DATE 5% ($) 10% ($)
------------ ------------ ------------ ---------- -------- ----------
<S> <C> <C> <C> <C> <C> <C>
C. Edward Baker, Jr. ... 49,636(4) 2.89 $6.875 03/05/07 $214,609 $ 543,861
409,688(5) 23.89 5.0625 01/16/08 553,600 2,110,041
Lyndon R. Daniels....... -- -- -- -- -- --
J. Roy Pottle........... -- -- -- -- -- --
John B. Saynor.......... 15,905(4) 0.93 6.875 03/05/07 68,768 174,271
35,905(5) 2.09 5.0625 01/16/08 48,517 184,924
Paul H. Kuzia........... 16,887(4) 0.98 6.875 03/05/07 73,013 185,031
69,687(5) 4.06 5.0625 01/16/08 94,166 358,913
William A. Wilson....... 32,836 1.92 6.875 03/05/07 141,971 359,783
</TABLE>
- --------
(1) Options generally become exercisable at a rate of 20% of the shares
subject to the option on the first anniversary of the date of grant and 5%
of the shares subject to the option per calendar quarter thereafter.
(2) The exercise price is equal to the fair market value of Arch Common Stock
on the date of grant.
117
<PAGE>
(3) Amounts represent hypothetical gains that could be achieved for the
options if exercised at the end of the option terms. These gains are
based on assumed rates of stock appreciation of 5% and 10% compounded
annually from the date the respective options were granted and are not
intended to forecast future appreciation of the price of the Common
Stock. The Named Executive Officers will realize no gain upon the
exercise of these options without an increase in the price of Arch Common
Stock, which increase will benefit all Arch stockholders proportionately.
(4) Option replaced as part of the January 16, 1998 option repricing program.
(5) Option granted as part of the January 16, 1998 option repricing program.
OPTION EXERCISES AND YEAR-END OPTION TABLE
The following table sets forth certain information regarding the exercise of
stock options during the year ended December 31, 1997 and stock options held
as of December 31, 1997 by the Named Executive Officers.
AGGREGATED OPTIONS/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTIONS VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
SHARES UNDERLYING OPTIONS IN-THE-MONEY OPTIONS
ACQUIRED ON VALUE AT FISCAL YEAR-END AT FISCAL YEAR-END
EXERCISE REALIZED (EXERCISABLE/UNEXERCISABLE) (EXERCISABLE/UNEXERCISABLE)
NAME (#) ($)(1) (#) ($)(2)
---- ----------- -------- ------------------------------ ------------------------------
<S> <C> <C> <C> <C> <C> <C>
C. Edward Baker, Jr .... -- -- 314,904(3) 188,816 $ 188,064 --
Lyndon R. Daniels....... -- -- -- -- -- --
John B. Saynor.......... -- -- 4,000 31,905 -- --
J. Roy Pottle........... -- -- -- -- -- --
Paul H. Kuzia........... -- -- 46,400 23,287 -- --
William A. Wilson....... -- -- -- -- -- --
</TABLE>
- --------
(1) Represents the difference between the exercise price and the fair market
value of Arch Common Stock on the date of exercise.
(2) Based on the fair market value of Arch Common Stock on December 31, 1997
($5.125 per share) less the option exercise price.
(3) Subsequent to December 31, 1997, Mr. Baker exercised an option for 94,032
shares.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The current members of Arch's Compensation Committee are R. Schorr Berman,
Allan L. Rayfield and John A. Shane. Messrs. Berman and Shane served on the
Compensation Committee throughout 1997, and Mr. Rayfield joined the
Compensation Committee upon his election as a director in July 1997.
C. Edward Baker, Jr., the Chairman and Chief Executive Officer of Arch,
makes recommendations and participates in discussions regarding executive
compensation, but he does not participate directly in discussions regarding
his own compensation. No current executive officer of Arch has served as a
director or member of the Compensation Committee (or other committee serving
an equivalent function) of any other entity, any of whose executive officers
has served as a director of Arch or as a member of the Compensation Committee
of Arch.
118
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of Arch Common Stock, as of September 30, 1998, by (i)
each person who is known by Arch to beneficially own more than 5% of its
outstanding shares of Arch Common Stock, (ii) each current director of Arch,
(iii) Arch's Chief Executive Officer and the other Named Executive Officers and
(iv) all current directors and executive officers of Arch as a group.
PRE-MERGER BENEFICIAL OWNERSHIP
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES(1) PERCENTAGE(2)
---------------------------------------------------- --------- -------------
<S> <C> <C>
Sandler Capital Management (3) ..................... 4,674,433 18.2%
Franklin Resources, Inc. (4)........................ 2,514,080 9.8
Memorial Drive Trust (5)............................ 1,947,990 7.6
State of Wisconsin Investment Board (6)............. 1,388,000 5.4
Dimensional Fund Advisors Inc. (7).................. 1,304,900 5.1
Goldman, Sachs & Co. (8)............................ 1,225,500 4.8
C. Edward Baker, Jr. ............................... 220,679 0.9
Lyndon R. Daniels................................... 12,000 *
John B. Saynor...................................... 197,924 0.8
J. Roy Pottle....................................... -- --
Paul H. Kuzia....................................... 20,840 *
R. Schorr Berman (9)................................ 1,962,140 7.6
James S. Hughes..................................... 81,837 *
John Kornreich (10) ................................ 4,911,574 19.1
Allan L. Rayfield................................... 3,250 *
John A. Shane (11).................................. 39,188 *
William A. Wilson (12).............................. 600 *
All current directors and executive officers of Arch
as a group (10 persons) (13)....................... 7,449,432 28.8
</TABLE>
- ---------------------
* Less than 0.5%
(1) Unless otherwise indicated, each person or entity named in the table has
sole voting power and investment power (or shares such power with his
spouse) with respect to all shares of capital stock listed as owned by
such person or entity.
(2) Assumes the conversion of Series C Preferred Stock into Arch Common Stock
at the initial conversion price of $5.50 per share. See "--Arch
Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources--Sandler Equity Investment".
(3) The business address of Sandler is 767 Fifth Avenue, 45th Floor, New York,
New York 10153. Sandler has sole voting and investment power over 348,000
of such shares and shared voting and investment power over 4,326,433 of
such shares.
(4) The business address of Franklin Resources, Inc. is 777 Mariners Island
Boulevard, San Mateo, California 94404. Franklin Advisers, Inc., a
subsidiary of Franklin Resources, Inc., has sole voting power and sole
investment power with respect to 2,493,700 shares. Franklin Management,
Inc., a subsidiary of Franklin Resources, Inc., has sole investment power
with respect to 20,380 shares. Franklin Resources, Inc., the principal
shareholders thereof, Franklin Advisers, Inc. and Franklin Management,
Inc. disclaim beneficial ownership of these securities. This information
is based on Amendment No. 1 to Schedule 13G filed by Franklin Resources,
Inc. with the SEC on January 26, 1998.
(5) The business address of Memorial Drive Trust is 125 Cambridge Park Drive,
Cambridge, Massachusetts 02140. All shares listed in the above table as
held by Memorial Drive Trust are held by MD Co. as nominee for Memorial
Drive Trust, a trust holding assets of a qualified profit sharing plan for
employees of Arthur D. Little, Inc., over which Mr. Berman may be deemed
to share voting and investment power. See footnote (10).
119
<PAGE>
(6) The business address of the State of Wisconsin Investment Board is P.O.
Box 7842, Madison, Wisconsin 53707. This information is based on the
Schedule 13G filed by the State of Wisconsin Investment Board with the SEC
on January 27, 1998.
(7) The business address of Dimensional Fund Advisors Inc. is 1299 Ocean
Avenue, 11th Floor, Santa Monica, California 90401. Dimensional Fund
Advisors Inc. has sole voting power with respect to 860,800 shares and
sole investment power with respect to all 1,304,900 shares. Officers of
Dimensional Fund Advisors Inc. also serve as officers of DFA Investment
Dimensions Group Inc. and The DFA Investment Trust Company, each an open-
end management investment company. These officers have sole voting power
with respect to 139,100 shares owned by DFA Investment Dimensions Group
Inc. and 305,000 shares owned by The DFA Investment Trust Company. All of
these securities are owned by advisory clients of Dimensional Fund
Advisors Inc., none of which, to the knowledge of Dimensional Fund
Advisors Inc., owns more than 5% of the class. Dimensional Fund Advisors
Inc. disclaims beneficial ownership of such securities. This information
is based on the Schedule 13G filed by Dimensional Fund Advisors Inc. with
the SEC on February 10, 1998.
(8) The business address of Goldman, Sachs & Co. and its parent holding
company, The Goldman Sachs Group, L.P. (collectively "Goldman Sachs"), is
85 Broad Street, New York, New York 10004. Goldman Sachs has shared voting
power with respect to 854,100 shares and shared investment power with
respect to all 1,225,500 shares. Goldman Sachs disclaims beneficial
ownership of the shares beneficially owned by (i) managed accounts and
(ii) certain investment limited partnerships, of which a subsidiary of
Goldman Sachs is the general partner or managing general partner, to the
extent partnership interests in such partnerships are held by persons
other than Goldman Sachs or their affiliates. This information is based on
the Schedule 13G filed by Goldman Sachs with the SEC on February 17, 1998.
(9) Includes 1,947,990 shares held by Memorial Drive Trust, over which Mr.
Berman may be deemed to share voting and investment power as Administrator
and Chief Executive Officer of Memorial Drive Trust. Mr. Berman disclaims
beneficial ownership of such shares held by Memorial Drive Trust.
(10) Includes 4,674,433 shares beneficially owned by Sandler, over which Mr.
Kornreich may be deemed to have voting and investment power as Managing
Director, and 190,000 shares beneficially owned by two limited
partnerships, over which Mr. Kornreich may be deemed to have voting and
investment power as a general partner. Mr. Kornreich disclaims beneficial
ownership of all such shares.
(11) Includes 1,051 shares owned by Palmer Service Corporation, over which Mr.
Shane may be deemed to have voting and investment power as President and
sole stockholder of Palmer Service Corporation, and 3,104 shares issuable
upon conversion of $52,000 principal amount of Arch's 6 3/4% Convertible
Subordinated Debentures due 2003 held by Palmer Partners, L.P., of which
Mr. Shane is the general partner. See "Description of Certain Arch
Indebtedness--Arch Convertible Debentures".
(12) Consists of 600 shares held by or jointly with Mr. Wilson's children.
(13) Includes (i) 4,674,433 shares beneficially owned by Sandler and 190,000
shares beneficially owned by two limited partnerships of which Mr.
Kornreich is a general partner, (ii) 1,947,990 shares held by Memorial
Drive Trust, (iii) 1,051 shares held by Palmer Service Corporation, (iv)
3,104 shares issuable upon conversion of $52,000 principal amount of
Arch's 6 3/4% Convertible Subordinated Debentures due 2003 held by Palmer
Partners, L.P. and (v) 108,379, 4,000, 19,520, 11,250, 11,250, 750, 2,250,
11,250, and 168,649 shares issuable upon the exercise of outstanding stock
options held by Messrs. Baker, Saynor, Kuzia, Berman, Hughes, Kornreich,
Rayfield, Shane and all current directors and executive officers of Arch
as a group, respectively, exercisable within 60 days after September 30,
1998.
120
<PAGE>
The following table sets forth certain information regarding the beneficial
ownership of Arch Combined Common Stock that will be outstanding immediately
following the Merger.
POST-MERGER BENEFICIAL OWNERSHIP
<TABLE>
<CAPTION>
SHARES OWNED IMMEDIATELY
AFTER THE MERGER
-------------------------
NUMBER OF
NAME SHARES (1) PERCENTAGE(2)
---- ----------- -------------
<S> <C> <C>
Sandler Capital Management (3)....................... 12,837,834 8.0%
C. Edward Baker, Jr.................................. 604,453 *
Lyndon R. Daniels.................................... 32,957 *
John B. Saynor....................................... 543,523 *
J. Roy Pottle........................................ -- --
Paul H. Kuzia........................................ 57,207 *
R. Schorr Berman (4)................................. 5,387,310 3.5
James S. Hughes...................................... 224,694 *
John Kornreich (5)................................... 13,488,866 8.4
Allan L. Rayfield.................................... 8,925 *
John A. Shane (6).................................... 107,596 *
William A. Wilson (7)................................ 1,648 *
Unsecured Creditors of Parent and MobileMedia (8).... 126,520,659 83.1
All current directors and executive officers of Arch
as a group (10 persons) (9)......................... 20,455,532 12.4
</TABLE>
- --------
*Less than 0.5%
(1) Assumes the following (i) the issuance of 122,845,000 shares of Arch
Combined Common Stock to the Unsecured Creditors, (ii) the distribution of
Arch Participation Warrants to the Standby Purchasers to acquire 3,675,659
shares of Arch Common Stock and (iii) no exercise of Arch Stockholder
Rights. Unless otherwise indicated, each person or entity named in the
table has sole voting power and investment power (or shares such power with
his spouse) with respect to all shares of capital stock listed as owned by
such person or entity.
(2) Assumes the conversion of Series C Preferred Stock into Arch Common Stock
at the initial conversion price of $5.50 per share. See "--Arch
Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources--Sandler Equity Investment".
(3) The business address of Sandler is 767 Fifth Avenue, 45th Floor, New York,
New York 10153. Sandler has sole voting and investment power over 348,000
of such shares and shared voting and investment power over 4,326,433 of
such shares. Includes 8,163,400 shares of Arch Common Stock issuable upon
the exercise of Arch Participation Warrants to be distributed to Sandler
Capital Management exercisable immediately upon the Effective Time
(assuming no exercise of Arch Stockholder Rights).
(4) Includes 1,947,990 shares held by Memorial Drive Trust, over which Mr.
Berman may be deemed to share voting and investment power as Administrator
and Chief Executive Officer of Memorial Drive Trust. Mr. Berman disclaims
beneficial ownership of such shares held by Memorial Drive Trust.
(5) Includes 4,674,433 shares beneficially owned by Sandler, over which Mr.
Kornreich may be deemed to have voting and investment power as Managing
Director, and 190,000 shares beneficially owned by two limited
partnerships, over which Mr. Kornreich may be deemed to have voting and
investment power as a general partner. Mr. Kornreich disclaims beneficial
ownership of all such shares.
(6) Includes 1,051 shares owned by Palmer Service Corporation, over which Mr.
Shane may be deemed to have voting and investment power as President and
sole stockholder of Palmer Service Corporation, and 3,104 shares issuable
upon conversion of $52,000 principal amount of Arch's 6 3/4% Convertible
Subordinated Debentures due 2003 held by Palmer Partners, L.P., of which
Mr. Shane is the general partner. See "Description of Certain Arch
Indebtedness--Arch Convertible Debentures".
(7) Includes 600 shares held by or jointly with Mr. Wilson's children.
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(8) Assumes that all shares sold in the Rights Offering are purchased by the
Unsecured Creditors. Includes, 3,675,659 shares of Arch Common Stock
issuable upon the exercise of Arch Participation Warrants to be
distributed to the Standby Purchasers exercisable immediately upon the
Effective Time. The Standby Purchasers will not hold, in the aggregate,
shares representing more than 49.0% of the securities of Arch generally
entitled to vote in the election of directors or 49.0% of the total voting
power of the securities of Arch outstanding at the Effective Time. See
"The Merger Agreement--Related Agreements--Standby Purchase Agreements".
(9) Includes (i) 4,674,433 shares beneficially owned by Sandler and 190,000
shares beneficially owned by two limited partnerships of which Mr.
Kornreich is a general partner, (ii) 1,947,990 shares held by Memorial
Drive Trust, (iii) 1,051 shares held by Palmer Service Corporation, (iv)
3,104 shares issuable upon conversion of $52,000 principal amount of
Arch's 6 3/4% Convertible Subordinated Debentures due 2003 held by Palmer
Partners, L.P., (v) 108,379, 4,000, 19,520, 11,250, 11,250, 750, 2,250,
11,250 and 168,649 shares issuable upon the exercise of outstanding stock
options held by Messrs. Baker, Saynor, Kuzia, Berman, Hughes, Kornreich,
Rayfield, Shane and all current directors and executive officers of Arch
as a group, respectively, exercisable within 60 days after September 30,
1998. Also includes 383,774, 20,957, 345,599, 36,367, 3,425,170, 142,857,
8,577,292, 5,675, 68,408 and 13,006,099 shares of Arch Common Stock
issuable upon the exercise of Arch Participation Warrants to be
distributed to Messrs. Baker, Daniels, Saynor, Kuzia, Berman, Hughes,
Kornreich, Rayfield, Shane and all current directors and executive
officers of Arch as a group, respectively, exercisable immediately upon
the Effective Time (assuming no exercise of Arch Stockholder Rights).
ARCH MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The following discussion and analysis should be read in conjunction with
Arch's Consolidated Financial Statements and Notes thereto included elsewhere
in this Proxy Statement.
Arch is a leading provider of wireless messaging services, primarily paging
services, and is the third largest paging company in the United States (based
on pagers in service and net revenues (total revenues less cost of products
sold)). Arch had 4.2 million pagers in service at September 30, 1998. From
January 1, 1995 through September 30, 1998, Arch's total number of subscribers
grew at a compound rate on an annualized basis of 73.1%. For the same period
on an annualized basis, Arch's compound rate of internal subscriber growth
(excluding pagers added through acquisitions) was 52.8%.
Arch derives the majority of its revenues from fixed periodic (usually
monthly) fees, not dependent on usage, charged to subscribers for paging
services. As long as a subscriber remains on service, operating results
benefit from the recurring payments of the fixed periodic fees without
incurrence of additional selling expenses by Arch. Arch's service, rental and
maintenance revenues and the related expenses exhibit substantially similar
growth trends. Arch's average revenue per subscriber has declined over the
last three years for two principal reasons: (i) an increase in the number of
subscriber owned and reseller owned pagers for which Arch receives no
recurring equipment revenue and (ii) an increase in the number of reseller
customers whose airtime is purchased at wholesale rates. The reduction in
average paging revenue per subscriber resulting from these trends has been
more than offset by the elimination of associated expenses so that Arch's
margins have improved over such period. Furthermore, recent data indicates
such rate of decline has slowed.
Arch has achieved significant growth in pagers in service and EBITDA through
a combination of internal growth and acquisitions, including USA Mobile in
September 1995 and Westlink in May 1996. Arch's total revenues have increased
from $162.6 million in the year ended December 31, 1995 to $331.4 million in
the year ended December 31, 1996 and to $396.8 million in the year ended
December 31, 1997. Over the same periods, through operating efficiencies and
economies of scale, Arch has been able to reduce its per pager operating costs
to enhance its competitive position in its markets. Due to the rapid growth in
its subscriber base, Arch has incurred significant selling expenses, which are
charged to operations in the period incurred. Arch had net losses of $36.6
million, $114.7 million and $181.9 million in the years ended December 31,
1995, 1996 and 1997, respectively, as a result of significant depreciation and
amortization expenses related to acquired and developed
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assets and interest charges associated with indebtedness. However, as its
subscriber base has grown, Arch's operating results have improved, as evidenced
by an increase in Arch Adjusted EBITDA from $47.2 million in the year ended
December 31, 1995 to $105.8 million in the year ended December 31, 1996 and to
$130.3 million in the year ended December 31, 1997.
EBITDA is a commonly used measure of financial performance in the paging
industry and also is one of the financial measures used to calculate whether
Arch and its subsidiaries are in compliance with the covenants under their
respective debt agreements, but should not be construed as an alternative to
operating income or cash flows from operating activities as determined in
accordance with GAAP. One of Arch's financial objectives is to increase its
EBITDA, as such earnings are a significant source of funds for servicing
indebtedness and for investment in continued growth, including purchase of
pagers and paging system equipment, construction and expansion of paging
systems, and possible acquisitions. EBITDA, as determined by Arch, may not
necessarily be comparable to similarly titled data of other paging companies.
Amounts reflected as EBITDA are not necessarily available for discretionary use
as a result of restrictions imposed by the terms of existing or future
indebtedness (including the repayment of such indebtedness or the payment of
interest thereon), limitations imposed by applicable law upon the payment of
dividends or distributions or capital expenditure requirements.
SHIFT IN OPERATING FOCUS
In April 1997, Arch reordered its operating priorities to improve capital
efficiency and strengthen its balance sheet by placing a higher priority on
leverage reduction than subscriber unit growth. As part of its reordered
operating priorities, Arch has implemented various initiatives to reduce
capital costs while sustaining acceptable levels of unit and revenue growth. As
a result, Arch's rate of internal growth in pagers in service slowed during the
second half of 1997 and is expected to remain below the rates of internal
growth previously achieved by Arch. As part of its reordered operating
priorities, Arch is also reviewing the possible sale of non-strategic assets.
In April 1998, Arch announced the Tower Site Sale for approximately $38.0
million in cash (subject to adjustment). In the Tower Site Sale, ACI is selling
communications towers, real estate, site management contracts and/or leasehold
interests involving 133 sites in 22 states and will rent space on the towers on
which it currently operates communications equipment to service its own paging
network. ACI will use its net proceeds from the Tower Site Sale (estimated to
be $36.0 million) to repay indebtedness. ACI held the initial closing of the
Tower Site Sale on June 26, 1998 with gross proceeds to ACI of approximately
$12.0 million (excluding $1.3 million which was paid to entities affiliated
with Benbow for certain assets owned by such entities and sold as part of this
transaction), held a second closing on September 29, 1998 with gross proceeds
to ACI of $20.4 million and currently expects to hold the final closing for the
balance of the transaction in the fourth quarter of 1998, although no assurance
can be given that the final closing will be held as expected. See "Business--
Arch--Investments in Narrowband PCS Licenses".
DIVISIONAL REORGANIZATION
In June 1998, the Arch Board approved the Divisional Reorganization. As part
of the Divisional Reorganization, which is being implemented over a period of
18 to 24 months, Arch has consolidated its former Midwest, Western, and
Northern divisions into four existing operating divisions, and is in the
process of consolidating certain regional administrative support functions,
such as customer service, collections, inventory and billing, to reduce
redundancy and take advantage of various operating efficiencies.
Arch estimates that the Divisional Reorganization, once fully implemented,
will result in annual cost savings of approximately $15.0 million. These cost
savings will consist primarily of a reduction in compensation expense of
approximately $11.5 million, a reduction in rental expense of facilites and
general and administrative costs of approximately $3.5 million. Arch expects to
reinvest a portion of these cost savings to expand its sales activities,
however to date the extent of this reinvestment and therefore the cost has not
yet been determined.
In connection with the Divisional Reorganization, Arch (i) anticipates a net
reduction of approximately 10% of its workforce, (ii) plans to close certain
office locations and redeploy other real estate assets and (iii) recorded
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a restructuring charge of $16.1 million during the second quarter of 1998. The
restructuring charge consisted of approximately (i) $9.7 million for employee
severance, (ii) $3.5 million for lease obligations and terminations, (iii)
$1.4 million for the writedown of fixed assets and (iv) $1.5 million of other
costs. The severance costs and lease obligations will require cash outlays
throughout the 18 to 24 month restructuring period. Management anticipates the
cash requirements for these items to be relatively consistent from quarter to
quarter throughout the Divisional Reorganization period. These cash outlays
will be funded from operations or the API Credit Facility. There can be no
assurance that the desired cost savings will be achieved or that the
anticipated reorganization of Arch's business will be accomplished smoothly,
expeditiously or successfully. The difficulties of such reorganization may be
increased by the need to integrate MobileMedia's operations in multiple
locations and to combine two corporate cultures. The inability to successfully
integrate the operations of MobileMedia could have a material adverse effect
on Arch following the Merger. See Note 9 to Arch's Consolidated Financial
Statements.
ACE/USAM MERGER
On June 29, 1998, Arch effected a number of restructuring transactions
involving certain of its direct and indirect wholly owned subsidiaries. Arch
Communications Enterprises, Inc. ("ACE") was merged (the "ACE/ USAM Merger")
into API, which was then a subsidiary of USA Mobile Communications, Inc. II
("USAM"). In connection with the ACE/USAM Merger, USAM changed its name to ACI
and issued 100 shares of its common stock to Arch. Immediately prior to and in
connection with the ACE/USAM Merger, (i) USAM contributed its operating assets
and liabilities to an existing subsidiary of USAM, (ii) The Westlink Company,
which held ACE's 49.9% equity interest in Benbow, distributed its Benbow
assets and liabilities to a new subsidiary of ACE, The Westlink Company II,
(iii) ACE contributed its operating assets and liabilities to an existing
subsidiary of ACE, (iv) all of USAM's subsidiaries were merged into API, and
(v) The Westlink Company II was merged into a new API subsidiary, Benbow
Investments, Inc. ("Benbow Investments").
RESULTS OF OPERATIONS
The following table presents certain items from Arch's Consolidated
Statements of Operations as a percentage of net revenues (total revenues less
cost of products sold) and certain other information for the periods
indicated:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS
DECEMBER 31, ENDED SEPTEMBER 30,
--------------------------------- -----------------------
1995 1996 1997 1997 1998
--------- --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Total revenues.......... 114.7 % 109.0 % 107.9 % 108.1% 107.6 %
Cost of products sold... (14.7) (9.0) (7.9) (8.1) (7.6)
--------- --------- --------- ---------- ----------
Net revenues............ 100.0 100.0 100.0 100.0 100.0
Operating expenses:
Service, rental and
maintenance.......... 20.9 21.4 21.7 21.6 21.1
Selling............... 17.3 15.4 14.0 14.3 12.8
General and
administrative....... 28.5 28.4 28.8 28.8 29.4
Depreciation and
amortization......... 42.5 63.1 63.2 65.8 57.3
Restructuring charge.. -- -- -- -- 5.6
--------- --------- --------- ---------- ----------
Operating income
(loss)............... (9.2)% (28.3)% (27.7)% (30.5)% (26.2)%
========= ========= ========= ========== ==========
Net income (loss)..... (25.8)% (37.7)% (49.5)% (52.2)% (54.8)%
========= ========= ========= ========== ==========
Arch Adjusted EBITDA.... 33.3 % 34.8 % 35.4 % 35.3 % 36.7%
========= ========= ========= ========== ==========
Cash flows provided by
operating activities... $ 14,749 $ 37,802 $ 63,590 $ 44,551 $ 91,415
Cash flows used in in-
vesting activities..... $(192,549) $(490,626) $(102,769) $ (74,672) $ (85,785)
Cash flows provided by
(used in) financing
activities............. $ 179,092 $ 452,678 $ 39,010 $ 31,645 $ (2,387)
Annual service, rental
and maintenance
expenses per pager..... $ 28 $ 25 $ 22 $ 22 $ 20
</TABLE>
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Nine Months Ended September 30, 1998 Compared with Nine Months Ended September
30, 1997
Total revenues increased to $309.6 million (a 4.7% increase) in the nine
months ended September 30, 1998, from $295.6 million in the nine months ended
September 30, 1997. Net revenues (total revenues less cost of products sold)
increased to $287.8 million (a 5.2% increase) in the nine months ended
September 30, 1998 from $273.6 million in the nine months ended September 30,
1997. Service, rental and maintenance revenues, which consist primarily of
recurring revenues associated with the sale or lease of pagers, increased to
$277.8 million (a 6.2% increase) in the nine months ended September 30, 1998
from $261.6 million in the nine months ended September 30, 1997. These
increases in revenues were due primarily to the increase through internal
growth in the number of pagers in service from 3.8 million at September 30,
1997 to 4.2 million at September 30, 1998. Maintenance revenues represented
less than 10% of total service, rental and maintenance revenues in the nine
months ended September 30, 1998 and 1997. Arch does not differentiate between
service and rental revenues. Product sales, less cost of products sold,
decreased to $9.9 million (a 17.0% decrease) in the nine months ended September
30, 1998 from $12.0 million in the nine months ended September 30, 1997,
respectively, as a result of a decline in the average revenue per pager sold.
Service, rental and maintenance expenses, which consist primarily of
telephone line and site rental expenses, increased to $60.8 million (21.1% of
net revenues) in the nine months ended September 30, 1998 from $59.2 million
(21.7% of net revenues) in the nine months ended September 30, 1997. The
increase was due primarily to increased expenses associated with system
expansions and the provision of paging services to a greater number of
subscribers. As existing paging systems become more populated through the
addition of new subscribers, the fixed costs of operating these paging systems
are spread over a greater subscriber base. Annualized service, rental and
maintenance expenses per subscriber were $20.00 in the nine months ended
September 30, 1998 as compared to $22.00 in the corresponding 1997 period.
Selling expenses decreased to $36.9 million (12.8% of net revenues) in the
nine months ended September 30, 1998 from $39.0 million (14.3% of net revenues)
in the nine months ended September 30, 1997. The decrease was due primarily to
a decrease in the number of net new subscriber additions and nonrecurring
marketing costs incurred in 1997 to promote Arch's new Arch Paging brand
identity. The number of net new subscriber additions resulting from internal
growth decreased by 34.0% in the nine months ended September 30, 1998 compared
to the nine months ended September 30, 1997, primarily due to Arch's shift in
operating focus from unit growth to capital efficiency and leverage reduction.
General and administrative expenses increased to $84.5 million (29.4% of net
revenues) in the nine months ended September 30, 1998, respectively, from $78.9
million (28.8% of net revenues) in the nine months ended September 30, 1997.
The increase was due primarily to administrative and facility costs associated
with supporting more pagers in service.
Depreciation and amortization expenses decreased to $165.0 million in the
nine months ended September 30, 1998 from $179.9 million in the nine months
ended September 30, 1997. These expenses principally reflect Arch's
acquisitions of paging businesses in prior periods, accounted for as purchases,
and investment in pagers and other system expansion equipment to support
growth.
Operating losses were $75.6 million in the nine months ended September 30,
1998 compared to $83.5 million in the nine months ended September 30, 1997, as
a result of the factors outlined above.
Net interest expense increased to $78.3 million in the nine months ended
September 30, 1998 from $72.4 million in the nine months ended September 30,
1997. The increase is principally attributable to an increase in Arch's
outstanding debt. Interest expense for the nine months ended September 30, 1998
and 1997 includes approximately $27.4 million and $24.6 million, respectively,
of non-cash interest accretion on the 10 7/8% Arch Discount Notes under which
semi-annual interest payments commence on September 15, 2001. See "Description
of Certain Arch Indebtedness--Arch Discount Notes".
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Arch recognized income tax benefits of $15.9 million in the nine months ended
September 30, 1997. This benefit represents the tax benefit of operating losses
incurred subsequent to the acquisitions of USA Mobile and Westlink which were
available to offset deferred tax liabilities arising from Arch's acquisition of
USA Mobile in September 1995 and Westlink in May 1996. The tax benefit of these
operating losses was fully recognized during 1997. Accordingly, Arch has
established a valuation reserve against its deferred tax asset which reduced
the income tax benefit to zero. Arch does not expect to recover, in the
foreseeable future, its deferred tax asset and will continue to increase its
valuation reserve accordingly.
In June 1998, Arch recognized an extraordinary charge of $1.7 million
representing the write-off of unamortized deferred financing costs associated
with the prepayment of indebtedness under prior credit facilities.
Net loss increased to $157.8 million in the nine months ended September 30,
1998 from $142.9 million in the nine months ended September 30, 1997, as a
result of the factors outlined above.
Year Ended December 31, 1997 Compared with Year Ended December 31, 1996
Total revenues increased $65.5 million, or 19.8%, to $396.8 million in the
year ended December 31, 1997 from $331.4 million in the year ended December 31,
1996 and net revenues increased $63.8 million, or 21.0%, from $303.9 million to
$367.7 million over the same period. Service, rental and maintenance revenues
increased $60.5 million, or 20.8%, to $351.9 million in the year ended December
31, 1997 from $291.4 million in the year ended December 31, 1996. These
increases in revenues were due primarily to the increase in the number of
pagers in service from 3.3 million at December 31, 1996 to 3.9 million at
December 31, 1997 and the full year impact of the Westlink acquisition which
was completed in May 1996. Maintenance revenues represented less than 10% of
total service, rental and maintenance revenues in the years ended December 31,
1996 and 1997. Product sales, less cost of products sold, increased 25.9% to
$15.7 million in the year ended December 31, 1997 from $12.5 million in the
year ended December 31, 1996 as a result of a greater number of pager unit
sales.
Service, rental and maintenance expenses increased to $79.8 million (21.7% of
net revenues) in the year ended December 31, 1997 from $65.0 million (21.4% of
net revenues) in the year ended December 31, 1996. The increase was due
primarily to increased expenses associated with system expansions and the
provision of paging services to a greater number of subscribers. Annual
service, rental and maintenance expenses per subscriber decreased to $22.00 in
the year ended December 31, 1997 from $25.00 in the year ended December 31,
1996.
Selling expenses increased to $51.5 million (14.0% of net revenues) in the
year ended December 31, 1997 from $47.0 million (15.4% of net revenues) in the
year ended December 31, 1996. The increase in selling expenses was due to the
full year impact of the Westlink acquisition and the marketing costs incurred
to promote Arch's Arch Paging brand identity. Arch's selling cost per net new
pager in service increased to $87.00 in the year ended December 31, 1997 from
$58.00 in the year ended December 31, 1996, primarily due to fixed selling
costs and increased marketing costs being spread over fewer net new pagers put
into service.
General and administrative expenses increased to $106.0 million (28.8% of net
revenues) in the year ended December 31, 1997 from $86.2 million (28.4% of net
revenues) in the year ended December 31, 1996. The increase in absolute dollars
was due primarily to increased expenses associated with supporting more pagers
in service, including the full year impact of Westlink, as well as expenses
associated with the establishment of Arch's National Services Division. See
"Business--Arch--Subscribers and Marketing".
Depreciation and amortization expenses increased to $232.3 million (63.2% of
net revenues) in the year ended December 31, 1997 from $191.9 million (63.1% of
net revenues) in the year ended December 31, 1996. These expenses reflect
Arch's acquisitions of paging businesses, accounted for as purchases, and
continued investment in pagers and other system expansion equipment to support
continued growth.
Operating loss increased to $102.0 million in the year ended December 31,
1997 from $86.1 million in the year ended December 31, 1996 as a result of the
factors outlined above.
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Net interest expense increased to $97.2 million in the year ended December
31, 1997 from $75.9 million in the year ended December 31, 1996. The increase
was attributable to an increase in Arch's average outstanding debt. In 1997 and
1996 interest expense includes approximately $33.0 million and $24.0 million,
respectively, of non-cash interest accretion on Arch's 10 7/8% Senior Discount
Notes due 2008 under which semi-annual interest payments commence on September
15, 2001. See Note 3 to Arch's Consolidated Financial Statements.
During the years ended December 31, 1997 and 1996, Arch recognized income tax
benefits of $21.2 million and $51.2 million, respectively, representing the tax
benefit of operating losses subsequent to the acquisitions of USA Mobile in
September 1995 and Westlink in May 1996 which were available to offset deferred
tax liabilities arising from Arch's acquisitions of USA Mobile and Westlink.
During 1996, Arch recognized an extraordinary charge of $1.9 million,
representing the write-off of unamortized deferred financing costs associated
with the prepayment of indebtedness under a prior credit facility.
Net loss increased to $181.9 million in the year ended December 31, 1997 from
$114.7 million in the year ended December 31, 1996 as a result of the factors
outlined above. Included in the net loss for the years ended December 31, 1997
and 1996 were charges of $3.9 million and $2.0 million, respectively,
representing Arch's pro rata share of Benbow's losses since the Westlink
acquisition in May 1996.
Year Ended December 31, 1996 Compared with Year Ended December 31, 1995
Total revenues increased $168.8 million, or 103.8%, to $331.4 million in the
year ended December 31, 1996 from $162.6 million in the year ended December 31,
1995 and net revenues increased $162.1 million, or 114.3%, from $141.8 million
to $303.9 million over the same period. Service, rental and maintenance
revenues increased $152.9 million, or 110.4%, to $291.4 million in the year
ended December 31, 1996 from $138.5 million in the year ended December 31,
1995. These increases in revenues were due primarily to the increase in the
number of pagers in service from 2.0 million at December 31, 1995 to 3.3
million at December 31, 1996. Acquisitions of paging companies added 0.5
million pagers in service during 1996, with the remaining 0.8 million pagers
added through internal growth. Maintenance revenues represented less than 10%
of total service, rental and maintenance revenues in the years ended December
31, 1995 and 1996. Product sales, less cost of products sold, increased 274.0%
to $12.5 million in the year ended December 31, 1996 from $3.3 million in the
year ended December 31, 1995 as a result of a greater number of pager unit
sales.
Service, rental and maintenance expenses increased to $65.0 million (21.4% of
net revenues) in the year ended December 31, 1996 from $29.7 million (20.9% of
net revenues) in the year ended December 31, 1995. The increase was due
primarily to increased expenses associated with system expansions and the
provision of paging services to a greater number of subscribers. Annual
service, rental and maintenance expenses per subscriber decreased to $25.00 in
the year ended December 31, 1996 from $28.00 in the year ended December 31,
1995.
Selling expenses increased to $47.0 million (15.4% of net revenues) in the
year ended December 31, 1996 from $24.5 million (17.3% of net revenues) in the
year ended December 31, 1995. The increase in selling expenses was due to the
addition of sales personnel to support continued growth in the subscriber base,
as the number of net new pagers in service resulting from internal growth
increased by 122.7% from the year ended December 31, 1995 to the year ended
December 31, 1996. Arch's selling cost per net new pager in service decreased
to $58.00 in the year ended December 31, 1996 from $67.00 in the year ended
December 31, 1995, primarily due to increased sales through indirect
distribution channels.
General and administrative expenses increased to $86.2 million (28.4% of net
revenues) in the year ended December 31, 1996 from $40.4 million (28.5% of net
revenues) in the year ended December 31, 1995. The increase was due primarily
to increased expenses associated with supporting more pagers in service.
Depreciation and amortization expenses increased to $191.9 million (63.1% of
net revenues) in the year ended December 31, 1996 from $60.2 million (42.5% of
net revenues) in the year ended December 31, 1995.
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These expenses reflect Arch's acquisitions of paging businesses, accounted for
as purchases, and continued investment in pagers and other system expansion
equipment to support continued growth.
Operating loss increased to $86.1 million in the year ended December 31, 1996
from $13.0 million in the year ended December 31, 1995 as a result of the
factors outlined above.
Net interest expense increased to $75.9 million in the year ended December
31, 1996 from $22.5 million in the year ended December 31, 1995. The increase
was attributable to an increase in Arch's average outstanding debt. Interest
expense in 1996 includes approximately $24 million of non-cash interest
accretion on Arch's 10 7/8% Senior Discount Notes due 2008. See Note 3 to
Arch's Consolidated Financial Statements.
During the years ended December 31, 1996 and 1995, Arch recognized income tax
benefits of $51.2 million and $4.6 million, respectively, representing the tax
benefit of operating losses subsequent to the acquisitions of USA Mobile and
Westlink which were available to offset deferred tax liabilities arising from
Arch's acquisitions of USA Mobile and Westlink.
During 1996 and 1995, Arch recognized an extraordinary charge of $1.9 million
and $1.7 million, respectively, representing the write-off of unamortized
deferred financing costs associated with the prepayment of indebtedness under
separate prior credit facilities.
Net loss increased to $114.7 million in the year ended December 31, 1996 from
$36.6 million in the year ended December 31, 1995 as a result of the factors
outlined above. Included in net loss for the year ended December 31, 1995 was a
charge of $4.0 million representing Arch's pro rata share of USA Mobile's net
loss for the period of time from Arch's acquisition of its initial 37% interest
in USA Mobile on May 16, 1995 through the completion of Arch's acquisition of
USA Mobile on September 7, 1995. Included in the net loss for the year ended
December 31, 1996 was a charge of $2.0 million representing Arch's pro rata
share of Benbow's losses since the Westlink acquisition in May 1996.
LIQUIDITY AND CAPITAL RESOURCES
Arch's business strategy requires the availability of substantial funds to
finance the expansion of existing operations, to fund capital expenditures for
pagers and paging system equipment, to service debt and to finance
acquisitions.
Capital Expenditures and Commitments
Excluding acquisitions of paging businesses, Arch's capital expenditures were
$60.5 million in the year ended December 31, 1995, $155.6 million in the year
ended December 31, 1996, $102.8 million in the year ended December 31, 1997 and
$85.8 million in the nine months ended September 30, 1998. To date, Arch has
funded its capital expenditures with net cash provided by operating activities
and the incurrence of debt.
Arch currently anticipates capital expenditures (excluding deferred financing
costs) of approximately $85.0 million to $90.0 million for the year ending
December 31, 1998, primarily for the purchase of pagers, paging system
equipment and transmission equipment, as well as expenditures for information
systems and advances to Benbow (as described below). Such amounts are subject
to change based on Arch's internal growth rate and acquisition activity, if
any, during 1998. Included in Arch's anticipated capital expenditures for 1998
is funding to upgrade hardware and to internally develop software for a
centralized billing and management information system which is expected to
offer the back office capability to support significant future growth. See
"Risk Factors--Risks Common to Arch and MobileMedia--Impact of the Year 2000
Issue". Arch believes that it will have sufficient cash available from
operations and credit facilities to fund these expenditures.
Arch is obligated, to the extent such funds are not available to Benbow from
other sources and subject to the approval of Arch's designee on Benbow's Board
of Directors, to advance to Benbow sufficient funds to service its FCC license-
related debt obligations incurred by Benbow in connection with its acquisition
of its N-
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PCS licenses and to finance construction of an N-PCS system. The total cost to
Benbow of servicing its debt obligations and constructing an N-PCS system
(including the effect of Benbow's acquisition of Page Call) will be
approximately $100.0 million over the next five years. Arch currently
anticipates that approximately $40.0 million (approximately $10.0 million in
each of the next four years) of such amount will be funded by Arch and the
balance will be funded through vendor financing and other sources. See
"Business--Arch--Investments in Narrowband PCS Licenses".
Other Commitments and Contingencies
Interest payments on the $467.4 million principal amount at maturity of Arch
Discount Notes commence September 15, 2001. Arch expects to service such
interest payments out of cash made available to it by its subsidiaries. Based
on the principal amount of Arch Discount Notes presently outstanding, such
interest payments will equal $25.4 million on March 15 and September 15 of each
year until scheduled maturity on March 15, 2008. A default by Arch in its
payment obligations under the Arch Discount Notes could have a material adverse
effect on the business, financial condition, results of operations or prospects
of Arch. See "Risk Factors--Risks Related to Arch--Arch's Indebtedness and High
Degree of Leverage".
Sources of Funds
Arch's net cash provided by operating activities was $14.7 million, $37.8
million and $63.6 million in the years ended December 31, 1995, 1996 and 1997,
respectively, and $91.4 million in the nine months ended September 30, 1998.
Arch believes that its capital needs for the foreseeable future will be funded
with borrowings under current and future credit facilities, net cash provided
by operations and, depending on Arch's needs and market conditions, possible
sales of equity or debt securities. For additional information, see Note 3 of
Notes to Arch's Consolidated Financial Statements. Arch's ability to access
future borrowings will be dependent, in part, on its ability to continue to
grow its EBITDA. After giving pro forma effect to the Merger and assuming an
offering of the Planned ACI Notes, Arch estimates it will have $415.0 million
outstanding, and approximately $185.0 million in available borrowing capacity
under the API Credit Facility. If Arch is unable to complete the Planned ACI
Notes offering and therefore borrows under the Bridge Facility, Arch estimates
that the principal amount outstanding under the API Credit Facility would
increase to $500.0 million and available borrowing capacity would be reduced to
$100.0 million.
API Credit Facility
In June 1998, ACE amended its existing credit facility to establish senior
secured revolving credit and term loan facilities with API as borrower in the
aggregate amount of $400.0 million consisting of (i) a $175.0 million reducing
revolving credit facility (the "Tranche A Facility"), (ii) a $100.0 million
364-day revolving credit facility under which the principal amount outstanding
on the 364th day following the closing will convert to a term loan (the
"Tranche B Facility") and (iii) a $125.0 million term loan which was available
in a single drawing on the closing date (the "Tranche C Facility"). See
"Description of Certain Arch Indebtedness--API Credit Facility".
Effective as of August 18, 1998, API, The Bank of New York, Royal Bank of
Canada, Toronto Dominion (Texas), Inc. and Barclay's Bank PLC executed a
commitment letter for the API Credit Facility Increase, which, subject to
approval by each of API's lenders, would result in up to a $25.0 million
increase in the Tranche A Facility, up to a $25.0 million increase in the
Tranche B Facility and up to a $200.0 million increase in the Tranche C
Facility. See "Description of Certain Arch Indebtedness--API Credit Facility "
and "Risk Factors--Risks Related to Arch--API Credit Facility, Bridge Facility
and Indenture Restrictions".
Bridge Facility
Effective as of August 18, 1998, ACI and the Bridge Lenders executed a
commitment letter for the Bridge Facility pursuant to which a $120.0 million
term loan will be available for a single drawing on the closing date of the
Merger. See "Description of Certain Arch Indebtedness--Bridge Facility" and
"Risk Factors--Risks Related to Arch--API Credit Facility, Bridge Facility and
Indenture Restrictions".
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Issuance and Sale of Private Notes
In June 1998, ACI issued and sold $130.0 million principal amount of private
notes (the "Private Notes") to Bear Stearns, Barclays Capital Inc., RBC
Dominion Securities Corporation, BNY Capital Markets, Inc. and TD Securities
(USA) Inc. (collectively, the "Initial Purchasers") for net proceeds of $122.6
million (after deducting the discount to the Initial Purchasers and estimated
offering expenses payable by Arch) in a private placement made pursuant to Rule
144A under the Securities Act. The Private Notes were sold at an initial price
to investors of 98.049% of the face amount of their investment. See
"Description of Arch Indebtedness--ACI 12 3/4% Notes".
Sandler Equity Investment
On June 29, 1998, two partnerships managed by Sandler Capital Management
Company, Inc., ("Sandler") an investment management firm, together with certain
other private investors, made an equity investment in Arch of $25.0 million in
the form of Series C Preferred Stock. Simultaneously, Arch contributed to ACI
as an equity investment $24.0 million of the net proceeds from the sale of
Series C Preferred Stock, ACI contributed such amount to API as an equity
investment and API used such amount to repay indebtedness under ACE's existing
credit facility as part of the establishment of the API Credit Facility. So
long as at least 50% of the Series C Preferred Stock remains outstanding, the
holders of the Series C Preferred Stock have the right, voting as a separate
class, to designate one member of the Arch Board. Immediately prior to the
Series C Preferred Stock financing, partnerships managed by Sandler owned 4.3%
of the outstanding Arch Common Stock. After giving effect to the issuance of
the Series C Preferred Stock, the holders of the Series C Preferred Stock
beneficially owned (including the Common Stock owned by partnerships managed by
Sandler) 21.3% of Arch Common Stock. See "Description of Arch Securities".
Inflation
Inflation has not had a material effect on Arch's operations to date. Paging
systems equipment and operating costs have not increased in price and Arch's
pager costs have declined substantially in recent years. This reduction in
costs has generally been reflected in lower pager prices charged to subscribers
who purchase their pagers. Arch's general operating expenses, such as salaries,
employee benefits and occupancy costs, are subject to normal inflationary
pressures.
RECENT AND PENDING ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 130 "Reporting Comprehensive
Income". SFAS No. 130 establishes standards for reporting and display of
comprehensive income and its components (revenues, expenses, gains and losses)
in a full set of general-purpose financial statements. Arch adopted SFAS No.
130 in 1998. The adoption of this standard did not have an effect on its
reporting of income.
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131
"Disclosures about Segments of an Enterprise and Related Information". SFAS No.
131 establishes standards for reporting information about operating segments in
annual financial statements and requires selected information about operating
segments in interim financial reports. SFAS No. 131 also establishes standards
for related disclosures about products and services, geographic areas and major
customers. Arch intends to adopt SFAS No. 131 for its year ending December 31,
1998. Arch has not completed its review of SFAS No. 131 but adoption of this
standard is not expected to have a significant impact on its reporting.
In March 1998, the Accounting Standards Committee of the Financial Accounting
Standards Board issued Statement of Position 98-1 ("SOP 98-1") "Accounting for
the Costs of Computer Software Developed or Obtained for Internal Use." SOP 98-
1 establishes criteria for capitalizing costs of computer software developed or
obtained for internal use. Arch adopted SOP 98-1 in 1998. The adoption of SOP
98-1 has not had a material effect on Arch's financial position or results of
operations.
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In April 1998, the Accounting Standards Executive Committee of the Financial
Accounting Standards Board issued Statement of Position 98-5 ("SOP 98-5")
"Reporting on the Costs of Start-Up Activities". SOP 98-5 requires costs of
start-up activities and organization costs to be expensed as incurred. Initial
application of SOP 98-5 will be reported as the cumulative effect of a change
in accounting principle. Arch intends to adopt SOP 98-5 effective January 1,
1999. The adoption of SOP 98-5 is not expected to have a material effect on
Arch's financial position or results of operations.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133
"Accounting for Derivative Instruments and Hedging Activities". SFAS No. 133
requires that every derivative instrument be recorded in the balance sheet as
either an asset or liability measured at its fair value and that changes in the
derivative's fair value be recognized currently in earnings. Arch intends to
adopt this standard effective January 1, 2000. Arch has not yet quantified the
impact of adopting SFAS No. 133 on its financial statements, however, adopting
SFAS No. 133 could increase volatility in earnings and other comprehensive
income.
MOBILEMEDIA
Parent, through MobileMedia, operates one of the largest paging companies in
the United States, with approximately 3.2 million units in service as of
September 30, 1998. Through its sales offices, nationwide retail distribution
network, company-operated retail stores and resellers, MobileMedia offers
local, regional and national coverage to subscribers in all 50 states and the
District of Columbia, including local coverage to each of the 100 most
populated metropolitan markets in the United States. MobileMedia markets its
services primarily under the MobileComm brand name. Parent's business is
conducted primarily through MobileMedia, and MMC and various subsidiaries of
MMC hold MobileMedia's FCC licenses and, where applicable, state public utility
commission authorizations that grant MobileMedia the authority to operate its
paging systems. MobileMedia was incorporated in September 1993.
MobileMedia distributes its paging services using three primary distribution
channels: direct, reseller and retail, as described below. MobileMedia's paging
and wireless messaging services consist principally of numeric and alphanumeric
paging services offering local, regional and national coverage. As of September
30, 1998, MobileMedia had approximately 2.6 million numeric units in service,
representing approximately 80% of its subscriber base, approximately .6 million
alphanumeric units in service, representing approximately 19% of its subscriber
base, with other types of units in service representing the remaining
approximately 1% of its subscriber base.
BUSINESS STRATEGY
Since the Petition Date, MobileMedia has been engaged in restructuring its
operations with the objective of improving performance, principally in the
areas of order entry, billing and collections, inventory controls, management
information systems conversion and customer service. MobileMedia has also
undertaken cost reduction analyses and has taken actions that have the
objective of reducing telecommunications, subcontracting and lease expenses,
among others. In addition, MobileMedia has sought to refocus its marketing and
sales efforts in an attempt to achieve unit additions consistent with positive
cash flow, and is continuing to change its management structure with the
objective of establishing profit and loss accountability in each market.
PAGING AND MESSAGING SERVICES PRODUCTS AND OPERATIONS
Paging and Messaging Services.
MobileMedia currently offers a variety of paging and messaging services. To
send a page to a MobileMedia subscriber, a party must initiate contact with a
paging terminal. This is typically accomplished, depending on the type of
paging service, by use of a touch-tone telephone, with the assistance of an
operator employed by or working on behalf of MobileMedia or through software
loaded onto the sender's personal computer, an input device or the Internet.
The paging terminal then sends an encoded message to MobileMedia's transmitter
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network, which broadcasts the call to its geographic service area. This
broadcast signal is received by the subscriber's pager, which decodes the
information, alerts the subscriber and displays the message received. The main
paging services offered by MobileMedia are:
Numeric (Digital Display) Paging Service. Numeric paging service permits
a caller, using a touch-tone telephone, to transmit to a subscriber a
numeric message consisting of a telephone number, an account number or
coded information. Numeric pagers have memory capability to store several
such numeric messages which can be recalled by a subscriber when desired.
As of September 30, 1998, MobileMedia had approximately 2.6 million numeric
units in service.
Alphanumeric Paging Service. Alphanumeric paging service allows
subscribers to receive and store messages consisting of both letters and
numbers. Alphanumeric pagers have sufficient memory to store numerous
messages. This service has the capability to tie into computer-based
networks to provide advanced messaging services. Callers may send messages
either by using an operator dispatch center, a personal computer equipped
with a modem and MessageSoft software or a portable alphanumeric input
device, such as the AlphaMate manufactured by Motorola. Internet and
WorldWide Web access is also possible for many alphanumeric paging
customers. As of September 30, 1998, MobileMedia had approximately .6
million alphanumeric units in service.
Other Services. In addition to local, regional and nationwide paging
service--both numeric and alphanumeric--MobileMedia offers a variety of
enhanced services such as voice mail and voice mail notification, e-mail
notification and news, sports reports and stock quotes.
The following table sets forth the number of MobileMedia customers by service
type as of the dates indicated.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF SEPTEMBER 30,
------------------------------------------------- --------------------------------
1995 1996 1997 1997 1998
--------------- --------------- --------------- --------------- ---------------
TYPE OF SERVICE NUMBER % NUMBER % NUMBER % NUMBER % NUMBER %
--------------- --------- ----- --------- ----- --------- ----- --------- ----- --------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Numeric Display......... 1,934,774 81.7% 3,713,579 83.9% 2,820,443 82.0% 3,033,939 82.4% 2,553,261 80.2%
Alphanumeric............ 384,843 16.2% 658,769 14.9% 593,280 17.2% 614,909 16.7% 613,195 19.3%
Other................... 49,484 2.1% 51,759 1.2% 26,619 0.8% 32,221 0.9% 15,751 0.5%
--------- ----- --------- ----- --------- ----- --------- ----- --------- -----
Total................... 2,369,101 100.0% 4,424,107 100.0% 3,440,342 100.0% 3,681,069 100.0% 3,182,207 100.0%
========= ===== ========= ===== ========= ===== ========= ===== ========= =====
Customers with
nationwide services
(included above)....... 63,101 325,924 330,254 336,818 334,498
</TABLE>
Products and Services
Subscribers for paging services enter into a service contract with
MobileMedia that provides for either the purchase or lease of pagers and the
payment of airtime and other charges. As of September 30, 1998, approximately
49% of units in service were purchased either by subscribers or by resellers,
and approximately 51% were owned by MobileMedia and leased to subscribers.
Customer-owned and -maintained ("COAM") pagers and those owned by resellers do
not require capital investment by MobileMedia, unlike MobileMedia-owned pagers
leased to subscribers. MobileMedia also sells its services in bulk quantities
to resellers, who subsequently sell MobileMedia's services to end-users.
Resellers are responsible for sales, billing, collection and equipment
maintenance costs. MobileMedia sells other products and services, including
pagers and accessories and pager replacement and maintenance contracts. The
following table sets forth MobileMedia's units in service by ownership as of
the dates indicated.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF SEPTEMBER 30,
------------------------------------------------- --------------------------------
1995 1996 1997 1997 1998
--------------- --------------- --------------- --------------- ---------------
OWNERSHIP NUMBER % NUMBER % NUMBER % NUMBER % NUMBER %
--------- --------- ----- --------- ----- --------- ----- --------- ----- --------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Company owned and rented
to subscribers......... 1,087,183 45.9% 1,996,141 45.2% 1,712,941 49.8% 1,808,134 49.1% 1,630,340 51.2%
COAM.................... 514,068 21.7% 1,112,194 25.1% 861,250 25.0% 940,302 25.6% 759,229 23.9%
Resellers............... 767,850 32.4% 1,315,772 29.7% 866,151 25.2% 932,633 25.3% 792,638 24.9%
--------- ----- --------- ----- --------- ----- --------- ----- --------- -----
Total................... 2,369,101 100.0% 4,424,107 100.0% 3,440,342 100.0% 3,681,069 100.0% 3,182,207 100.0%
========= ===== ========= ===== ========= ===== ========= ===== ========= =====
</TABLE>
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NETWORKS AND LICENSES
MobileMedia operates local, regional and national paging networks which
enable its customers to receive pages over a broad geographical area. The
extensive coverage provided by this network infrastructure provides MobileMedia
with an advantage over certain competitors whose networks lack comparable
coverage in securing accounts with large corporate clients and retail chains,
who frequently demand national network coverage from their paging service
provider.
Although MobileMedia's networks provide local, regional and national
coverage, its networks operate over numerous frequencies and are subject to
capacity constraints in certain geographic markets. Although the capacity of
MobileMedia's networks varies significantly market by market, almost all of
MobileMedia's markets have adequate capacity to meet the demands of projected
growth for the next several years. In addition, MobileMedia is in the process
of adding additional capacity to its network infrastructure through its
Narrowband PCS buildout described below. The use of multiple frequencies adds
complexity to inventory management, customer service and order fulfillment
processes. Certain of MobileMedia's networks utilize older technologies and are
comparatively costlier to operate.
MobileMedia is seeking to improve overall network efficiency through the
deployment of new paging terminals, the consolidation of subscribers on fewer,
higher capacity networks and increasing the transmission speed (baud rate) of
certain of its existing networks. MobileMedia believes its investments in its
network infrastructure will facilitate and improve the delivery of high quality
paging services while at the same time reducing associated costs of such
services.
Nationwide wireless networks. MobileMedia operates two nationwide 900 MHz
networks. As part of the MobileComm Acquisition, MobileMedia acquired
MobileComm's fully operational nationwide wireless "8875" network, which
was upgraded in 1996 to incorporate high-speed FLEX technology developed by
Motorola. In addition, in 1996, MobileMedia completed the construction of a
second nationwide "5375" network that uses FLEX technology. The use of FLEX
technology significantly increases transmission capacity and represents a
marked improvement over other systems that use older paging protocols.
Nationwide two-way narrowband PCS networks. Narrowband PCS networks
enable paging companies to offer two-way paging services and to make more
efficient use of radio spectrum than do non-PCS networks. MobileMedia
purchased five regional licenses through the FCC's 1994 auction of
narrowband PCS licenses, providing the equivalent of a nationwide 50 kHz
outbound/12.5 kHz inbound PCS system. In addition, as part of the
MobileComm Acquisition, MobileMedia acquired a second two-way narrowband
PCS license for a nationwide 50 kHz outbound/12.5 kHz inbound system.
In order to retain its narrowband PCS licenses, MobileMedia must comply with
certain minimum buildout requirements. With respect to each of the regional PCS
licenses purchased at the FCC's 1994 auction, MobileMedia would be required to
build out the related PCS system to cover 150,000 sq. km. or 37.5% of each of
the five regional populations by April 27, 2000 and 300,000 sq. km. or 75% of
each of the five regional populations by April 27, 2005. With respect to the
nationwide PCS license acquired as part of the MobileComm Acquisition,
MobileMedia would be required to build out the related PCS system to cover
750,000 sq. km. or 37.5% of the U.S. population by September 29, 1999 and
1,500,000 sq. km. or 75% of the U.S. population by September 29, 2004. In each
instance, the population percentage will be determined by reference to
population figures at the time of the applicable deadline. MobileMedia
estimates that the costs of these minimum build-outs (which would not be
sufficient for MobileMedia to provide significant narrowband PCS applications)
could be as much as approximately $9.0 million. MobileMedia has concluded that,
given the expected high demand for nationwide alphanumeric services, the
potential demand for guaranteed receipt services and MobileMedia's high fixed
costs for maintaining and building out its existing networks, the most
economical means for satisfying projected demand is for MobileMedia to
construct a fully operational narrowband PCS network with ReFLEX 25 capability.
MobileMedia estimates that the cost for this construction will be approximately
$40.0 million over the next two years, and that it will be able to complete the
construction relatively economically
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using its existing nationwide network infrastructure and supplementing it with
additional transmitters and receivers. On May 12, 1998, the Bankruptcy Court
authorized MobileMedia to enter into contracts during 1998 up to the amount of
$16.0 million in connection with the buildout of the network necessary to
support narrowband PCS services.
SALES AND MARKETING
MobileMedia's sales and marketing efforts are directed toward adding
additional units with existing subscribers and identifying new potential
subscribers. Subscribers to MobileMedia's paging and wireless communications
services generally have been individuals and organizations whose employees are
highly mobile or whose business involves multiple work locations and who are
required to remain in contact at all times. Traditional subscribers include
medical personnel, sales and service organizations, specialty trade
organizations, manufacturing organizations and governmental agencies. However,
paging services are increasingly appealing to mass market consumers for
private, non-business uses such as communicating with family and friends.
Sales Channels
MobileMedia markets its paging services through three primary sales channels:
direct, reseller and retail.
Direct. In the direct channel, MobileMedia leases or sells pagers
directly to its customers and bills and services such customers.
MobileMedia's direct customers range from individuals and small- and
medium-sized businesses to Fortune 500 accounts and government agencies.
Business and government accounts typically exhibit lower churn rates than
consumer accounts. The direct channel will continue to have the highest
priority among MobileMedia's marketing and sales efforts, given its
critical contribution to recurring revenue and projected growth.
MobileMedia is engaged in efforts to improve sales productivity and
strengthen its direct channel sales force, which suffered from high
turnover and open positions during much of 1997. In addition, MobileMedia
has commenced implementing consumer direct marketing techniques in 1998. As
of September 30, 1998, the direct channel accounted for approximately 79%
of recurring revenue.
Reseller. In the reseller channel, MobileMedia sells access to its
transmission networks in bulk to a third party, who then resells such
services to the end users (usually consumers or small businesses).
MobileMedia offers paging services to resellers at bulk discounted rates.
The third party reseller provides customer service, is responsible for
pager maintenance and repair costs, invoices the end user and retains the
credit risk of the end user, although MobileMedia retains the credit risk
of the reseller. Because resellers are responsible for customer equipment,
the capital costs that would otherwise be borne by MobileMedia are reduced.
MobileMedia's resellers generally are not exclusive distributors of
MobileMedia's services and often resell paging services of more than one
provider. Competition among service providers to attract and maintain
reseller distribution is based primarily upon price, including the sale of
pagers to resellers at discounted rates. MobileMedia intends to be an
active participant in the reseller channels and to concentrate on accounts
that are profitable and where longer term partnerships can be established
with selected resellers. As of September 30, 1998, the reseller channel
accounted for approximately 11% of recurring revenue.
Retail. In the retail channel, MobileMedia sells pagers to retailers and,
after the consumer purchases the pager from the retailer, the consumer
contacts MobileMedia to activate service. The retail channel is targeted at
the consumer market and consists primarily of national retail chains.
Consumers served by the retail channel typically purchase (as opposed to
lease) paging units, reducing MobileMedia's capital investment
requirements. Subscribers obtained through retailers are billed and
serviced directly by MobileMedia. Retail distribution permits MobileMedia
to penetrate the consumer market by supplementing direct sales efforts. As
of September 30, 1998, the retail channel accounted for approximately 10%
of recurring revenue.
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COMPETITION
See "Industry Overview--Competition".
REGULATION
See "Industry Overview--Regulation".
SOURCES OF EQUIPMENT
MobileMedia does not manufacture any of the pagers or related transmitting
and paging terminal equipment used in its paging operations. MobileMedia
currently purchases pagers from a limited number of suppliers and in turn sells
or leases the pagers to its subscribers. Motorola is the primary supplier of
pagers to MobileMedia. Glenayre is MobileMedia's primary supplier of paging
terminals, paging transmitters and voice mail system equipment. On February 6,
1997, MobileMedia obtained Bankruptcy Court approval to pay the pre-petition
outstanding accounts payable owing to Motorola, Glenayre, NEC and Panasonic
Communications & Systems Company ("Panasonic" and together with Motorola,
Glenayre and NEC, the "Key Suppliers"), in exchange for which each of Motorola,
NEC, Panasonic and Glenayre entered into post-petition supply agreements with
MobileMedia.
EMPLOYEES
At September 30, 1998, MobileMedia employed 3,072 people in various
capacities, with 161 in MobileMedia's corporate headquarters in Fort Lee, New
Jersey and the balance in its five regions. None of such employees is covered
by collective bargaining agreements. MobileMedia believes its employee
relations are good.
TRADEMARKS
MobileMedia markets its services primarily under the trade name MobileComm
and the federally registered mark MOBILECOMM, except in the Greater
Metropolitan Cincinnati area and in certain parts of Western Pennsylvania and
Western New York, in which it markets its services under the federally
registered mark MOBILEMEDIA. MobileMedia markets its messaging services under
the federally registered mark VOICESTAR, and other services under the federally
registered mark SPORTSCASTER and the unregistered mark MOBILECOMM CITYLINK.
MobileMedia also owns other federally registered marks including: DIAL PAGE,
DMC DIGITAL MOBILE COMMUNICATIONS, EZ ALERT, MEMORY MANAGER, MESSAGESOFT,
MOBILEMEDIA (and design) MOBILEMEDIA (and Globe Design), MOBILEMEDIA PAGING &
PERSONALCOM and PAGERXTRA. In addition, MobileMedia has applications on file
for federal registration of the marks MMS and MOBILECOMM (and design.)
PROPERTIES
In addition to its FCC licenses and network infrastructure (which includes
radio transmission and satellite uplink equipment), MobileMedia has the
following categories of assets: (i) pagers (including both pagers held as fixed
assets for lease and pager inventory for sale), pager parts and accessories;
(ii) its subscriber base and related accounts receivable; (iii) intellectual
property; (iv) real estate and improvements; (vi) leased assets; (vii) computer
and telephone systems and equipment; (viii) furniture, fixtures and equipment;
(ix) ownership of one-third of the equity of Abacus Communications Partners,
L.P.; (x) goodwill and other intangibles; and (xi) cash and cash equivalents.
On January 22, 1998, the Bankruptcy Court approved MobileMedia's entry into a
lease with Miller Freeman, Inc. (the "Fort Lee Lease"). Pursuant to the Fort
Lee Lease, MobileMedia relocated its headquarters to Fort Lee, New Jersey as of
March 23, 1998, resulting in cost savings to MobileMedia of approximately $3.0
million over the term of the Fort Lee Lease. On March 18, 1998, the Bankruptcy
Court approved the assignment
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of the lease for the premises that previously served as MobileMedia's
headquarters. The Bankruptcy Court has also extended the period during which
MobileMedia can decide whether to assume or reject non-residential real
property leases to the confirmation date of the Plan. As of September 30, 1998,
121 leases had been rejected with Bankruptcy Court approval. On April 14, 1998,
the Bankruptcy Court approved MobileMedia's motion to assume the lease for the
premises that serves as its Dallas, Texas customer service center.
At September 1, 1998, MobileMedia leased office space (including its
executive offices) in approximately 33 states for use in conjunction with its
paging operations. MobileMedia leases transmitter sites and/or owns
transmitters on commercial broadcast towers, buildings and other fixed
structures. MobileMedia's leases are for various terms and provide for monthly
lease payments at various rates. MobileMedia believes that it will be able to
obtain additional space as needed at acceptable cost.
Sale of MobileMedia Tower Sites
On July 7, 1998, MobileMedia and Pinnacle executed an agreement, subject to
Bankruptcy Court approval, to sell the MobileMedia Tower Sites and to rent from
Pinnacle transmitter space on the MobileMedia Tower Sites. The MobileMedia
Tower Site Sale was completed on September 3, 1998. MobileMedia recognized
proceeds from such sale of $170.0 million, and the annual rental expense is
approximately $10.7 million. The proceeds of the MobileMedia Tower Site Sale
were paid to the Pre-Petition Lenders, which Lenders had liens on all of the
assets being sold.
The MobileMedia Tower Site Sale was the product of an extensive bidding
process. Prior to executing this agreement, Blackstone, on behalf of
MobileMedia, contacted approximately 40 potential MobileMedia Tower Sites
buyers and executed confidentiality agreements with, and distributed
MobileMedia Tower Sites information to, approximately 30 of these potential
buyers. After permitting certain potential purchasers to conduct due diligence,
MobileMedia and Blackstone determined that Pinnacle's offer represented the
highest and best offer.
In connection with the agreement to sell the MobileMedia Tower Sites to
Pinnacle, MobileMedia filed two motions on July 14, 1998. One motion sought to
establish procedures for bidding on the MobileMedia Tower Sites and provides
for liquidated damages and the reimbursement of expenses to Pinnacle under
certain circumstances. This relief was granted on July 23, 1998. The second
motion sought Bankruptcy Court approval of the sale of the MobileMedia Tower
Sites to Pinnacle, and the rental of transmitter sites from Pinnacle and the
payment of the sale proceeds to the Pre-Petition Lenders. The relief requested
in this motion was granted on August 10, 1998.
EVENTS LEADING UP TO MOBILEMEDIA'S BANKRUPTCY FILINGS
Beginning in 1995, MobileMedia grew its business primarily through
acquisitions. In August 1995, MobileMedia completed the acquisition of the
paging and wireless messaging business of Dial Page (the "Dial Page
Acquisition"). The purchase price of the Dial Page Acquisition was largely
financed through an initial public offering of 8,800,000 shares of Parent Class
A Common Stock which, at a price to the public of $18.50 per share, generated
net proceeds of approximately $151.9 million, which proceeds were contributed
to MMC. The total purchase price of the Dial Page Acquisition was $187.4
million, which included the assumption of $85 million outstanding principal
amount of the 12 1/4% Dial Page Notes. Concurrently with the transaction, MMC
repurchased all but approximately $1.6 million of the Dial Page Notes. The Dial
Page Acquisition added approximately 0.4 million units in service in the
southeastern United States to MMC's subscriber base.
In January 1996, MMC completed the acquisition of MobileComm, the paging and
wireless messaging unit of BellSouth Corporation and an associated nationwide
two-way narrowband 50/12.5 kHz PCS license (the "MobileComm Acquisition"). The
purchase price for the MobileComm Acquisition was $928.7 million which was
financed by (i) Parent's public offering of 15,525,000 shares of Class A Common
Stock which, at a price to the public of $23.75 per share, generated net
proceeds of approximately $354.9 million, of which $340.0 million
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was contributed by Parent to MMC, (ii) a concurrent public offering by MMC of
$250.0 million aggregate principal amount at maturity of 9 3/8% Notes (the
"MobileMedia 9 3/8% Notes") and (iii) loan facilities aggregating $750.0
million, consisting of a $550.0 million secured term loan facility and a $200.0
million secured revolving loan facility (the "MobileMedia 1995 Credit
Facility"), evidenced by The MobileMedia 1995 Credit Agreement. $500.0 million
of the secured term loan facility was used as consideration for the MobileComm
Acquisition. $50.0 million dollars of the MobileMedia 1995 Credit Facility was
used to repay MMC's former credit facility. The MobileComm Acquisition added
approximately 1.7 million units in service to MobileMedia's subscriber base.
During 1996, MobileMedia experienced difficulties executing its post-
acquisition business strategy. These difficulties related largely to the
process of integration of the operations of Dial Page and MobileComm into those
of MobileMedia. As a result, MobileMedia did not achieve expected growth in its
subscriber base and revenues, nor did it realize anticipated efficiencies and
cost reductions from the elimination of duplicative functions.
During 1996, MobileMedia's financial position deteriorated. As of September
30, 1996, MMC was in violation of certain financial covenants under the $750.0
million MobileMedia 1995 Credit Agreement, which resulted in the occurrence of
"Events of Default" under that agreement and precluded MMC from borrowing
additional funds thereunder. MMC's obligations under the MobileMedia 1995
Credit Agreement are guaranteed by Parent and by all the subsidiaries of MMC.
In the fall of 1996, MobileMedia commenced negotiations with The Chase
Manhattan Bank, the agent for the lenders under the MobileMedia 1995 Credit
Agreement, regarding the terms of a possible financial restructuring.
In press releases issued on September 27 and October 21, 1996, MobileMedia
disclosed that misrepresentations had been made to the FCC and that other
violations had occurred during the licensing process for as many as 400 to 500
authorizations, or approximately 6% to 7%, of its approximately 8,000 local
transmission one-way paging stations. MobileMedia caused an investigation to be
conducted by its outside counsel, and a comprehensive report regarding these
matters was provided to the FCC on October 15, 1996. The results of an expanded
investigation were submitted to the FCC on November 8, 1996. MobileMedia is
still in the process of resolving these issues with the FCC. See "--MobileMedia
Management's Discussion and Analysis of Financial Condition and Results of
Operations--Pending FCC Action Against MobileMedia".
In November and December of 1996, MobileMedia sought to modify payment terms
with certain of its larger vendors, some of which had not been paid in
accordance with their scheduled payment terms. In the fall of 1996, Motorola,
MobileMedia's largest supplier of pagers and pager repair parts, informed
MobileMedia that it would require credit support to assure payment of
approximately $35.0 million past due accounts payable and would refuse to
accept orders for products or services from, and refuse to make shipments to,
MobileMedia pending resolution of the matter. Subsequently, Glenayre,
MobileMedia's primary supplier of paging terminals, transmitters and related
parts, and NEC and Panasonic, MobileMedia's secondary suppliers of pagers, also
made demands on MobileMedia for payment of their past due accounts in the
aggregate amount of $11.8 million.
On November 1, 1996, MobileMedia failed to make a scheduled interest payment
of approximately $11.8 million on the MobileMedia 9 3/8% Notes, which failure
was not cured during the 30-day grace period ending November 30, 1996. In
addition, in December 1996 and January 1997, MobileMedia failed to make
scheduled interest payments in the aggregate amount of approximately $13.4
million under the MobileMedia 1995 Credit Agreement.
Negotiations between MobileMedia and the Pre-Petition Lenders, the holders of
the MobileMedia 9 3/8% Notes and certain other outstanding notes (collectively,
the "MobileMedia Notes") and with the Key Suppliers continued through late
1996. When it became apparent that MobileMedia would be unable, among other
things, to reach agreements with the Key Suppliers to resume shipments of
critical inventory and equipment or to reach agreement with the Pre-Petition
Lenders and the holders of the MobileMedia Notes on the terms of a
restructuring of its indebtedness outside of Chapter 11 of the Bankruptcy Code,
MobileMedia concluded that it had no practical alternative other than to seek
protection under Chapter 11.
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On January 30, 1997, MobileMedia filed a voluntary petition for
reorganization under Chapter 11 with the Bankruptcy Court.
LITIGATION
MobileMedia is attempting to resolve issues with the FCC surrounding
misrepresentations and violations that occurred during the licensing process.
In addition, MobileMedia is involved in the following litigation, potential
litigation or claims.
Securities Class Actions
Prior to the Petition Date, five actions allegedly arising under the federal
securities laws were filed against MobileMedia and certain of its officers,
directors and underwriters in the United States District Court for the District
of New Jersey. These actions were subsequently consolidated as In re
MobileMedia Securities Litigation, No. 96-5723 (AJL) (the "New Jersey
Actions"). A consolidated amended complaint (the "Complaint") was filed on
November 21, 1997. The Complaint does not name MobileMedia as a defendant, but
alleges that (i) certain former officers of MobileMedia deceived the investing
public in violation of section 10(b) of the Exchange Act and Rule 10b-5
promulgated thereunder and section 20(b) of the Exchange Act by making false
statements or omissions in press releases and public filings between June 29,
1995 and September 27, 1996 (the "Class Period"), and (ii) certain officers,
directors and underwriters of MobileMedia violated sections 11, 12(a)(2) and 15
of the Securities Act by failing to disclose information in offering documents
filed with the SEC on or around November 7, 1995 in connection with the
secondary offering of MobileMedia common stock and MobileMedia 9 3/8% Notes.
The plaintiffs in the New Jersey Actions allege that, as a result of alleged
misrepresentations, purchasers of Parent's common stock and MobileMedia 9 3/8%
Notes suffered hundreds of millions of dollars in damages as the truth
concerning, among other things, the severe problems with MobileMedia's growth
strategy and its submission of false license applications to the FCC began to
emerge and the price of MobileMedia securities dropped.
In June 1997, MobileMedia initiated an adversary proceeding in the Bankruptcy
Court to stay the prosecution of the New Jersey Actions. The basis of
MobileMedia's motion for a stay was, inter alia, that the continued prosecution
of the New Jersey Actions would interfere with MobileMedia's efforts to
reorganize and would deplete the assets of the estate.
Pursuant to a stipulation entered into among MobileMedia and the plaintiffs
in the New Jersey Actions and "So Ordered" by the Bankruptcy Court on October
31, 1997, the plaintiffs in the New Jersey Actions could conduct only limited
discovery in connection with the New Jersey Actions and could not file any
pleadings, except responses to motions to dismiss, until the earlier of
September 30, 1998 and the Effective Date of the Plan. On October 21, 1998, a
motion to dismiss the New Jersey Actions filed by the defendents therein was
denied.
In addition to the New Jersey Actions, two lawsuits were filed in September
1997 in the United States District Court for the Northern District of
California and the Superior Court of California naming as defendants certain
former officers and certain present and former directors of MobileMedia,
certain investment entities and Ernst & Young LLP. MobileMedia is not named as
a defendant in these two actions. The actions are styled Allen T. Gilliland
Trust v. Hellman & Friedman Capital Partners II, L.P., Civil Action No. 97-3543
(N.D. Cal. 1997), and Allen T. Gilliland Trust v. Hellman & Friedman
MobileMedia Partners, L.L.C., Case No. 989891 (Cal. Super. Ct. 1997) (together,
the "California Actions" and, together with the New Jersey Actions, the
"Securities Actions"). The plaintiffs in the California Actions are or were
shareholders of Parent who purchased stock during 1995 and 1996 and allege that
Parent, through the actions of the named defendants, violated federal
securities laws, various provisions of the California Corporations Code and
California state law in connection with the sale of Parent's securities and in
various public filings.
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On November 4, 1997, MobileMedia commenced an adversary proceeding in the
Bankruptcy Court seeking to stay the prosecution of the California Actions
against the named defendants. At a hearing held on December 10, 1997, the
Bankruptcy Court enjoined the plaintiffs in the California Actions until May
31, 1998 from prosecuting the California Actions, except that the Bankruptcy
Court permitted the plaintiffs in the California Actions to prosecute and
respond to certain legal motions and to request documents of defendants and
non-parties who do not currently serve on the Board of MobileMedia.
On May 15, 1998, MobileMedia filed a motion with the Bankruptcy Court seeking
an extension of the stay in connection with the California Actions. Subsequent
to negotiations with the plaintiffs in the California Actions, MobileMedia
submitted an agreed form of order that barred certain types of discovery until
September 15, 1998. This order was signed by the Bankruptcy Court on May 29,
1998.
Neither the New Jersey Actions nor the California Actions names MobileMedia
or any of its subsidiaries as a defendant. However, proofs of claim have been
filed against MobileMedia by the plaintiffs in the New Jersey Actions, and both
the New Jersey Actions and the California Actions may give rise to claims
against MobileMedia's Directors, Officers and Corporate Liability Insurance
Policy. As to MobileMedia, however, these Claims are classified in Classes 7
and 8, and will receive no distributions under the Amended Plan.
Bankruptcy Claims
Since the June 16, 1997 bar date established by the Bankruptcy Court for
filing proofs of claim in the Insolvency Proceedings, MobileMedia has been
actively involved in resolving the claims filed against its estates. As of
September 30, 1998, approximately 2,400 proofs of claim had been filed in the
Insolvency Proceedings. Approximately 1,292 of these claims, filed in an
aggregate amount of approximately $110.8 million, have already been resolved by
order of the Bankruptcy Court at an aggregate allowed amount of approximately
$5.51 million. As of September 30, 1998, MobileMedia had also analyzed and
resolved an additional 860 proofs of claim, representing an aggregate allowed
amount of $6.7 million. Excluding claims filed by or on behalf of the Pre-
Petition Lenders, the holders of the MobleMedia Notes and taxing authorities,
there are fewer than 30 unresolved filed claims over $100,000, which claims
have an aggregate filed value of less than $25.0 million. MobileMedia has
already filed objections with the Bankruptcy Court to certain of these claims
and is currently in the process of reconciling and resolving those remaining.
MobileMedia believes that, once resolved, the aggregate allowed amount of these
remaining claims will be substantially less than $25.0 million.
MobileMedia is also in the process of reconciling and resolving the tax
claims filed against its estates. These tax claims were filed in an aggregate
amount of approximately $30 million. MobileMedia anticipates that these claims
will be allowed in an amount substantially less than the filed amount.
Potential Unsecured Creditors Committee Litigation
At a hearing held before the Bankruptcy Court on January 27, 1998, counsel to
the Unsecured Creditors Committee indicated its intention immediately to serve
discovery demands in connection with a potential objection to the Plan as filed
on January 27, 1998. The Committee's ex parte order authorizing discovery under
Bankruptcy Rule 2004 was approved by the Bankruptcy Court on February 5, 1998,
and the Committee subsequently served subpoenas for the production of documents
on MobileMedia and other parties. The production of documents by the
respondents was largely completed during March, although issues pertaining to
the production of certain privileged documents have yet to be resolved. On
April 1, the Unsecured Creditors Committee also served requests to conduct the
depositions of numerous individuals, including members of MobileMedia's
management, board of directors, professionals involved in the reorganization
proceedings, and members of the steering committee for MobileMedia's pre- and
post-petition secured lenders. Because the Unsecured Creditors Committee
supports the Amended Plan in its present form, it is not expected that this
litigation will continue.
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MOBILEMEDIA MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
PRESENTATION OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following definitions are relevant to a review and discussion of
MobileMedia's operating results.
Services, rents and maintenance revenues ("paging revenue"): includes
primarily monthly, quarterly, semi-annually and annually billed recurring
revenue, not dependent on usage, charged to subscribers for paging and
related services such as voice mail and pager repair and replacement.
Net revenues: includes primarily paging revenues and sales of customer
owned and maintained pagers less cost of pagers sold.
Services, rents and maintenance expenses: includes costs related to the
management, operation and maintenance of MobileMedia's network systems.
Selling expenses: includes salaries, commissions and administrative costs
for MobileMedia's sales force and related marketing and advertising
expenses.
General and administrative expenses: includes primarily customer service
expense, executive management, accounting, office telephone, rents and
maintenance and information services.
Average revenues per Unit ("ARPU"): calculated by dividing (i) the average
monthly services, rents and maintenance revenues for the period by (ii) the
weighted average number of units in service for the period. ARPU, as
determined by MobileMedia, may not necessarily be comparable to similarly
titled data of other paging companies.
Average monthly operating expense per unit : calculated by dividing (i) the
average monthly services, rents and maintenance, selling and general and
administrative expenses for the period by (ii) the weighted average number
of units in service for the period.
As used herein, MobileMedia Adjusted EBITDA represents earnings before other
income (expense), taxes, depreciation, amortization, impairment of long-lived
assets (see Note 2 of MobileMedia's Notes to Consolidated Financial Statements
included elsewhere herein), amortization of deferred gain on the tower sale
(see Note 3 of MobileMedia's Notes to Consolidated Financial Statements
included elsewhere herein) and restructuring costs. EBITDA is a financial
measure commonly used in the paging industry and should not be construed as an
alternative to operating income (as determined in accordance with GAAP), as an
alternative to cash flows from operating activities (as determined in
accordance with GAAP) or as a measure of liquidity. EBITDA is, however, the
primary financial measure by which MobileMedia's covenants are calculated
under the agreements governing MobileMedia's indebtedness.
As used herein, the term "acquisitions" refers to both the MobileComm
Acquisition and the Dial Page Acquisition.
OVERVIEW
The following discussion and analysis should be read in conjunction with
MobileMedia's Consolidated Financial Statements and Notes thereto included
elsewhere in this Proxy Statement/Prospectus.
MobileMedia builds and operates wireless messaging and communications
systems, and generates revenues from the provision of paging and other
wireless communications services. MobileMedia's strategy is to strengthen its
industry leadership position by providing superior paging and messaging
services at competitive prices.
MobileMedia's revenues are derived primarily from fixed periodic recurring
fees, not dependent on usage, charged to MobileMedia's subscribers for paging
services. While a subscriber remains in MobileMedia's service, future
operating results benefit from this recurring revenue stream with minimal
requirements for incremental selling expenses or other costs.
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On January 4, 1996, MobileMedia completed its acquisition of MobileComm and
on August 31, 1995, MMC purchased the paging business of Dial Page, Inc.
MobileMedia has incurred integration related costs in excess of those
originally anticipated to (i) transfer units-in-service between paging
networks to rationalize capacity, (ii) temporarily operate duplicative
functions, primarily customer service, and (iii) hire additional employees and
consultants to focus on the integration. Additionally, MobileMedia has
experienced increased loss of subscribers related to the integration
difficulties. Accordingly, MobileMedia's financial results have been
negatively impacted by the higher than anticipated integration costs and
increased loss of subscribers.
On January 30, 1997, Parent and MobileMedia filed voluntary petitions for
relief under the Bankruptcy Code in order to implement an operational and
financial restructuring ("Bankruptcy Filing"). Parent and MobileMedia are
presently operating their business as debtors-in-possession subject to the
jurisdiction of the Bankruptcy Court. Pursuant to the requirements of the
Bankruptcy Code, Parent and MobileMedia are required to file monthly operating
reports with the United States Trustee. Such reports are publicly available
through the office of the United States Trustee, and copies of such reports to
date have been filed as Current Reports on Form 8-K with the SEC. Financial
statements included in MobileMedia's periodic reports for the months of
February, 1997 through June, 1998 were not prepared in accordance with GAAP
due to MobileMedia's inability at the time of such filings to determine the
amount of an impairment loss related to long-lived assets pursuant to
Financial Accounting Standard No. 121, are unaudited and have been revised
periodically based on subsequent determination of changes in facts and
circumstances impacting previously filed unaudited financial statements. The
audited financial statements of MobileMedia included herein reflect
adjustments from the unaudited statements, including but not limited to, an
impairment adjustment of approximately $792.5 million recorded as of December
31, 1996.
The Disclosure Statement related to the Third Amendment to the Amended Plan
was filed with the Bankruptcy Court on December 3, 1998 (the "Third Amended
Disclosure Statement"). A hearing concerning the adequacy of information
contained in the Disclosure Statement was held on December 10, 1998. The
Bankruptcy Court approved the Disclosure Statement on December 11, 1998.
On September 3, 1998, MobileMedia completed the sale of 166 transmission
towers and related equipment to Pinnacle for $170.0 million in cash. Under the
terms of a lease with Pinnacle, MobileMedia will continue to own and utilize
transmitters, antennas and other equipment located on these towers for an
initial period of 15 years at an aggregate annual rental of $10.7 million. The
sale was accounted for in accordance with Statement of Financial Accounting
Standards No. 28, Accounting for Sales with Leasebacks, and resulted in a
recognized gain of $94.2 million and a deferred gain of $70.0 million. The
deferred gain will be amortized over the initial lease period of 15 years.
Subsequent to the sale, MobileMedia distributed the $170.0 million in proceeds
to its secured creditors, who had a lien on such assets.
PENDING FCC ACTION AGAINST MOBILEMEDIA
MobileMedia disclosed in press releases dated September 27, 1996 and October
21, 1996 that misrepresentations and other violations occurred during the
licensing process for as many as 400 to 500, or approximately 6% to 7%, of its
approximately 8,000 local transmission one-way paging stations. MobileMedia
caused an investigation to be conducted by outside counsel, and a
comprehensive report regarding these matters was provided to the FCC in the
fall of 1996. In cooperation with the FCC, outside counsel's investigation was
expanded to examine all of MobileMedia's paging licenses, and the results of
that investigation were submitted to the FCC on November 8, 1996. As part of
the cooperative process, MobileMedia also proposed to the FCC that a consent
order be entered which would result, among other things, in the return of
certain local paging authorizations then held by MobileMedia, the dismissal of
certain pending applications for paging authorizations, and the voluntary
acceptance of a substantial monetary forfeiture.
On January 13, 1997, the FCC issued a Public Notice relating to the status
of certain FCC authorizations held by MobileMedia. Pursuant to the Public
Notice, the FCC announced that it had (i) automatically terminated
approximately 185 authorizations for paging facilities that were not
constructed by the expiration date of their construction permits and remained
unconstructed, (ii) dismissed approximately 94 applications for fill-in sites
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around existing paging stations (which had been filed under the so-called "40-
mile rule") as defective because they were predicated upon unconstructed
facilities and (iii) automatically terminated approximately 99 other
authorizations for paging facilities that were constructed after the expiration
date of their construction permits. With respect to each of the approximately
99 authorizations where the underlying station was untimely constructed, the
FCC granted MobileMedia interim operating authority subject to further action
by the FCC.
On April 8, 1997, the FCC adopted an order commencing an administrative
hearing into the qualification of MobileMedia to remain a licensee. The order
directed an ALJ to take evidence and develop a full factual record on directed
issues concerning MobileMedia's filing of false forms and applications.
MobileMedia was permitted to operate its licensed facilities and provide
service to the public during the pendency of the hearing.
On June 6, 1997, the FCC issued an order staying the hearing proceeding in
order to allow MobileMedia to develop and consummate a plan of reorganization
that provides for a change of control of MobileMedia and a permissible transfer
of MobileMedia's FCC licenses. The order was originally granted for ten months
and was extended by the FCC through October 6, 1998. The order, which is based
on an FCC doctrine known as Second Thursday, provides that if there is a change
of control that meets the conditions of Second Thursday, the regulatory issues
designated for administrative hearing will be resolved by the transfer of
MobileMedia's FCC licenses to the new owners of MobileMedia and the hearing
will not proceed. MobileMedia believes that a reorganization plan that provides
for either a conversion of certain existing debt to equity, in which case
existing MobileMedia shares will be eliminated, or a sale or merger of
MobileMedia will result in a change of control that will satisfy the Second
Thursday doctrine. On September 2, 1998, MobileMedia and Arch filed a joint
Second Thursday application. MobileMedia believes the plan of reorganization
contemplated by the Merger Agreement and the Amended Plan satisfies the
conditions of Second Thursday. On October 5, 1998, a supplement was filed to
notify the FCC of certain modifications to the proposed transaction. The
application was accepted for filing by public notice dated October 15, 1998. On
October 16, 1998, MobileMedia and Arch filed a joint supplement of data
requested by the staff of the Wireless Telecommunications Bureau to assist in
their evaluation of the application. MobileMedia submitted additional
information to the Wireless Telecommunications Bureau on November 13, 1998.
Public comments on the Second Thursday application were due on November 16,
1998. On that date, the FCC's Wireless Telecommunications Bureau and the Pre-
Petition Lenders filed comments generally supporting grant of the application
and Orbital Communications Corporation submitted brief informal comments
opposing the application's request to terminate the hearing and to waive the
application fees. MobleMedia, Arch and the Pre-Petition Lenders each submitted
timely reply comments on or before November 27, 1998 and David A. Bayer
submitted a brief informal response to Orbital's letter. The designated
pleading cycle on the Second Thursday application is now closed.
In the event that Arch and MobileMedia are unable to consummate the
transactions contemplated by the Merger Agreement and the Amended Plan or any
other plan of reorganization that satisfies the conditions of Second Thursday,
MobileMedia may be required to proceed with the hearing, which, if adversely
determined, could result in the loss of MobileMedia's FCC licenses or
substantial monetary fines, or both. Such an outcome would have a material
adverse effect on MobileMedia's financial condition and results of operations.
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RESULTS OF OPERATIONS
Nine Months Ended September 30, 1998 Compared With Nine Months Ended September
30, 1997
The following table presents certain items from MobileMedia's Consolidated
Statement of Operations and certain other information for the periods
indicated:
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-----------------------------------------------------
1997 1998
-------------------------- --------------------------
(IN THOUSANDS, EXCEPT PERCENTAGE AND UNIT DATA)
(UNAUDITED)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF
OPERATIONS DATA
Revenues
Services, rents and
maintenance........... $ 378,922 99.8% $ 320,002 98.8%
Equipment sales and ac-
tivation fees......... 28,235 7.4% 20,367 6.3%
------------- --------- ------------- ---------
Total revenues........... 407,157 107.2% 340,369 105.1%
Cost of products sold.... (27,524) (7.2)% (16,531) (5.1)%
------------- --------- ------------- ---------
Net revenues............. 379,633 100.0% 323,838 100.0%
Operating expenses
Services, rents and
maintenance........... 110,146 29.0% 83,506 25.8%
Selling................ 53,816 14.2% 45,848 14.2%
General and administra-
tive.................. 145,337 38.3% 101,383 31.3%
Restructuring costs.... 15,577 4.1% 13,831 4.2%
Depreciation and amor-
tization.............. 104,368 27.5% 88,312 27.3%
Amortization of de-
ferred gain on tower
sale.................. -- -- (389) (0.1)%
------------- --------- ------------- ---------
Total operating expenses. 429,244 113.1% 332,491 102.7%
------------- --------- ------------- ---------
Operating loss: (49,611) (13.1)% (8,653) (2.7)%
Other income (expense)...
Interest expense (net)... (51,531) (13.5)% (42,449) (13.1)%
Gain on sale of assets... 3 0.0% 94,085 29.1%
------------- --------- ------------- ---------
Total other income (ex-
pense).................. (51,528) (13.5)% 51,636 15.9%
------------- --------- ------------- ---------
Income (loss) from con-
tinuing operations be-
fore income tax provi-
sion ................... (101,139) (26.6)% 42,983 13.3%
Income tax provision..... -- -- 678 0.2%
------------- --------- ------------- ---------
Income (loss) from con-
tinuing operations...... $(101,139) (26.6)% $ 42,305 13.1%
============= ========= ============= =========
OTHER DATA
MobileMedia Adjusted
EBITDA.................. $ 70,334 18.5% $ 93,101 28.7%
Cash flows provided by
(used in) operating ac-
tivities................ $ (2,847) $ 41,585
Cash flows provided by
(used in) investing ac-
tivities................ $ (32,321) $ 137,309
Cash flows provided by
(used in) financing ac-
tivities................ $ 20,396 $(180,000)
ARPU..................... $ 10.39 $ 10.74
Average monthly operating
expense per unit........ $ 8.48 $ 7.73
Units in service (at end
of period).............. 3,681,069 3,182,207
</TABLE>
Units in service decreased 498,862 from 3,681,069 as of September 30, 1997 to
3,182,207 as of September 30, 1998, a decrease of 13.6% of which 240,727 units
decreased between October 1, 1997 and December 31, 1997. The decrease with
respect to the fourth quarter of 1997 was attributable to continued increases
in unit cancellations due to acquisition integration difficulties, billing
system clean up to remove non-revenue producing units and cancellation of units
for non-payment. In 1998 the decrease was primarily attributable to gross
additions which were below expectations.
Services, rents and maintenance revenues decreased 15.5% to $320.0 million
for the nine months ended September 30, 1998 compared to $378.9 million for the
nine months ended September 30, 1997. The decrease
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was attributable to fewer units in service and partially offset by a $0.35
increase in ARPU from $10.39 for the nine months ended September 30, 1997 to
$10.74 for the nine months ended September 30, 1998. The increase in ARPU was
largely due to a greater percentage of units in service in the direct
distribution channel and a smaller percentage in the reseller distribution
channel. Units sold through the direct distribution channel generally are sold
at higher ARPU.
Equipment sales and activation fees decreased 27.9% to $20.4 million for the
nine months ended September 30, 1998 compared to $28.2 million for the nine
months ended September 30, 1997. The decrease in equipment sales was primarily
due to a $3.1 million decrease in equipment sold through the retail
distribution channel and a $4.4 million decrease in billings for non-returned
equipment. Equipment sales and activation fees, less cost of products sold,
increased 439.5% to $3.8 million for the nine months ended September 30, 1998
from $0.7 million for the nine months ended September 30, 1997. This increase
was primarily attributable to sales of used pagers with lower net book values
resulting from a change in pager depreciation from a four-year life to a three-
year life as of October 1, 1997.
Net revenues decreased 14.7% to $323.8 million for the nine months ended
September 30, 1998 compared to $379.6 million for the nine months ended
September 30, 1997.
Services, rents and maintenance expenses decreased 24.2% to $83.5 million for
the nine months ended September 30, 1998 compared to $110.1 million for the
nine months ended September 30, 1997. This decrease resulted primarily from
lower subcontracted paging expenses of approximately $12.4 million resulting
from billing reconciliations, increased unit cancellations and customer
migration to company-owned networks and reduced paging related
telecommunications expenses of approximately $12.0 million. The decline in
paging-related telecommunications expenses resulted primarily from the FCC
clarification of its interconnection rules pursuant to the Telecommunications
Act, which prohibit local exchange carriers from charging paging carriers for
the cost of dedicated facilities used to deliver local telecommunications
traffic to paging networks. The FCC clarification, however, noted that the FCC
is considering requests for reconsideration of these rules. In addition,
paging-related telecommunications expense declined as a result of a
reconfiguration of MobileComm's network to maximize usage of lower cost
facilities. As a percentage of net revenue, services, rents and maintenance
expenses decreased from 29.0% to 25.8%.
Selling expenses for the nine months ended September 30, 1998 decreased 14.8%
to $45.8 million compared to $53.8 million for the nine months ended September
30, 1997. The decrease resulted primarily from lower sales personnel costs and
lower commissions attributable to lower sales headcount and lower gross
additions. Selling expenses as a percentage of net revenue were constant at
14.2%.
General and administrative expenses decreased 30.2% to $101.4 million for the
nine months ended September 30, 1998 compared to $145.3 million for the nine
months ended September 30, 1997 and decreased as a percentage of net revenues
to 31.3% for the nine months ended September 30, 1998 from 38.3% for the nine
months ended September 30, 1997. The decrease primarily resulted from reduced
bad debt expense due to improvements in MobileMedia's billing and collections
functions and lower administrative telephone expenses resulting from lower call
volume and lower long distance rates as of October 1, 1997 and lower customer
service and retail activation expenses of $7.2 million primarily resulting from
lower headcount.
Restructuring costs decreased from $15.6 million for the nine months ended
September 30, 1997 to $13.8 million for the nine months ended September 30,
1998 due to a decline in professional fees incurred by MobileMedia as a result
of the bankruptcy filing on January 30, 1997.
Depreciation and amortization decreased 15.4% to $88.3 million for the nine
months ended September 30, 1998 compared to $104.4 million for the nine months
ended September 30, 1997. The decrease was primarily due to lower pager
depreciation attributable to a reduced depreciable base of pager assets
resulting from the change in useful life from four to three years on October 1,
1997 and decreased pager purchases. As a percentage of net revenues,
depreciation and amortization expense increased to 27.3% for the nine months
ended September 30, 1998 from 27.5% for the nine months ended September 30,
1997.
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Amortization of deferred gain on tower sale was $0.4 million for the nine
months ended September 30, 1998. (See Note 3 to MobileMedia's Consolidated
Financial Statements).
Operating loss decreased 82.6% to $8.7 million for the nine months ended
September 30, 1998 from $49.6 million for the nine months ended September 30,
1997. The decrease was primarily due to decreased operating expenses.
Interest expense decreased 17.6% to $42.4 million for the nine months ended
September 30, 1998 compared to $51.5 million for the nine months ended
September 30, 1997. The decrease was primarily due to lower interest expense on
MobileMedia's DIP facility resulting from lower outstanding borrowings in 1998.
Gain on sale of assets increased to $94.1 million for the nine months ended
September 30, 1998 primarily as a result of the sale of transmission towers and
related equipment to Pinnacle (See Note 3 to MobileMedia's Consolidated
Financial Statements).
Income (loss) from continuing operations before income tax provision, as a
result of the above factors, increased to income of $42.9 million for the nine
months ended September 30, 1998 compared to a loss of $101.1 million for the
nine months ended September 30, 1997.
Income tax provision increased to $0.7 million for the nine months ended
September 30, 1998 primarily as a result of the sale of transmission towers to
Pinnacle.
145
<PAGE>
Year Ended December 31, 1997 Compared with Year Ended December 31, 1996
The following table presents certain items from MobileMedia's Consolidated
Statement of Operations and certain other information for the periods
indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1996 1997
---------------------------- --------------------------
(IN THOUSANDS, EXCEPT PERCENTAGE AND UNIT DATA)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENT
OF OPERATIONS DATA
Revenues
Services, rents and
maintenance.......... $ 568,892 100.1% $ 491,174 99.9%
Equipment sales and
activation fees...... 71,818 12.7 36,218 7.4
--------------- ---------- ------------- ---------
Total revenues.......... 640,710 112.8 527,392 107.3
Cost of products sold. (72,595) (12.8) (35,843) (7.3)
--------------- ---------- ------------- ---------
568,115 100.0 491,549 100.0
Operating expenses
Services, rents and
maintenance.......... 144,050 25.4 139,333 28.3
Selling............... 96,817 17.0 69,544 14.2
General and adminis-
trative.............. 218,607 38.5 179,599 36.5
Impairment of long-
lived assets......... 792,478 139.5 -- --
Restructuring costs... 4,256 0.7 19,811 4.0
Depreciation and amor-
tization............. 348,698 61.4 140,238 28.6
--------------- ---------- ------------- ---------
Total operating ex-
penses................. 1,604,906 282.5 548,525 111.6
--------------- ---------- ------------- ---------
Operating loss.......... (1,036,791) (182.5) (56,976) (11.6)
Total other expense..... (92,595) (16.2) (67,608) (13.7)
--------------- ---------- ------------- ---------
Loss before income tax
benefit................ (1,129,386) (198.7) (124,584) (25.3)
Income tax benefit...... (69,442) 12.2 -- --
--------------- ---------- ------------- ---------
Net loss................ $ (1,059,944) (186.5)% $ (124,584) (25.3)%
=============== ========== ============= =========
OTHER DATA
MobileMedia Adjusted
EBITDA................. $ 108,641 19.1% $ 103,073 21.0%
Cash flows provided by
operating activities... $ 57,194 $ 14,920
Cash flows used in in-
vesting activities..... $ (1,028,321) $ (40,556)
Cash flows provided by
financing activities... $ 586,111 $ 13,396
ARPU.................... $ 11.08 $ 10.41
Average monthly operat-
ing expense per unit
(1).................... $ 8.95 $ 8.23
Units in service (at end
of period)............. 4,424,107 3,440,342
</TABLE>
- --------
(1) Does not include impact of $792.5 million asset impairment writedown in
1996.
Units in service decreased from 4,424,107 as of December 31, 1996 to
3,440,342 as of December 31, 1997, a decrease of 22.2%. The decrease was
attributable to a decrease in gross unit additions and an increase in unit
cancellations primarily resulting from acquisition integration difficulties,
billing system clean up to remove non-revenue generating units and
cancellation of units for non-payment.
Services, rents and maintenance revenues decreased 13.7% to $491.2 million
for the year ended December 31, 1997 compared to $568.9 million for the year
ended December 31, 1996 due to fewer units in service and lower ARPU. ARPU
decreased to $10.41 for the year ended December 31, 1997 from $11.08 for the
year ended December 31, 1996 largely due to continued competitive market
conditions.
Equipment sales and activation fees decreased 49.6% to $36.2 million for the
year ended December 31, 1997 compared to $71.8 million for the year ended
December 31, 1996. The decrease in equipment sales was
146
<PAGE>
primarily attributable to less equipment sold through the retail distribution
channel. Equipment sales and activation fees, less cost of products sold,
increased from $(0.8) million for the year ended December 31,1996 to $0.4
million for the year ended December 31, 1997 primarily as a result of lower
retail sales of equipment sold at a discount. Cost of products sold for the
year ended December 31, 1996 includes a writedown of $3.2 million, reflecting
the establishment of a lower of cost or market reserve for pagers held for
resale through MobileMedia's retail and reseller distribution channels.
Net revenues decreased 13.5% to $491.5 million for the year ended December
31, 1997 compared to $568.1 million for the year ended December 31, 1996.
Services, rents and maintenance expenses decreased 3.3% to $139.3 million for
the year ended December 31, 1997 compared to $144.1 million for the year ended
December 31, 1996, primarily due to billing reconciliation and lower nationwide
subcontracted paging expenses resulting from cancellations and customer
migration from networks not owned by MobileMedia to company-owned networks.
Selling expenses for the year ended December 31, 1997 decreased 28.2% to
$69.5 million from $96.8 million for the year ended December 31, 1996 primarily
due to lower sales personnel costs and lower sales commissions attributable to
lower sales headcount and lower gross additions. In addition, reseller and
retail distribution channel selling expenses declined as a result of lower
sales volume. Selling expenses as a percentage of net revenue decreased to
14.2% for the year ended December 31, 1997 from 17.0% for the year ended
December 31, 1996.
General and administrative expenses decreased 17.8% to $179.6 million for the
year ended December 31, 1997 compared to $218.6 million for the year ended
December 31, 1996. General and administrative expenses decreased as a
percentage of net revenues to 36.5% for the year ended December 31, 1997 from
38.5% for the year ended December 31, 1996 primarily due to decreased bad debt
expense, customer service expenses related to the assimilation of MobileComm's
customer service functions, and consulting fees related to the integration of
the acquisitions. Bad debt expense decreased as a result of increased
collections resulting from improvements in MobileMedia's billing and collection
functions.
Restructuring costs increased from $4.2 million for the year ended December
31, 1996 to $19.8 million for the year ended December 31, 1997 due to
professional fees constituting administrative expenses incurred by MobileMedia
as a result of the bankruptcy filing on January 30, 1997 as compared to the
1996 expenses incurred in connection with MobileMedia's attempt to restructure
its debt.
Depreciation and amortization decreased 59.8% to $140.2 million for the year
ended December 31, 1997 compared to $348.7 million for the year ended December
31, 1996. The decrease was primarily due to a writedown of impaired assets by
$792.5 million pursuant to Statement of Financial Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to be
Disposed Of" effective December 31, 1996 (See Note 2 of MobileMedia's Notes to
Consolidated Financial Statements included elsewhere herein), amortization of a
non-competition agreement related to the MobileComm Acquisition which was fully
amortized in 1996 and decreased pager depreciation resulting from a decrease in
expenses related to unrecoverable subscriber equipment and a reserve
established to lower book values of certain pager models to current market
values in 1996. As a percentage of net revenues, depreciation and amortization
expense decreased to 28.6% for the year ended December 31, 1997 from 61.4% for
the year ended December 31, 1996.
Operating loss decreased to $57.0 million for the year ended December 31,
1997 from $1,036.8 million for the year ended December 31, 1996. The decrease
was primarily due to the $792.5 million asset impairment writedown effective
December 31, 1996 and other factors indicated above.
Total other expense, principally interest expense, decreased 27.0% to $67.6
million for the year ended December 31, 1997 compared to $92.6 million for the
year ended December 31, 1996. The decrease was primarily due to interest
expense related to MobileMedia's $250.0 million Senior Subordinated Notes due
147
<PAGE>
November 1, 2007 and $210.0 million Senior Subordinated Deferred Coupon Notes
not being recognized subsequent to the Bankruptcy filing on January 30, 1997.
Loss before income tax benefit, as a result of the above factors, decreased
to $124.6 million for the year ended December 31, 1997 from $1,129.4 million
for the year ended December 31, 1996.
Income tax benefit of $69.4 million resulted from the deferred tax adjustment
attributable to the $792.5 asset impairment writedown effective December 31,
1996.
Year Ended December 31, 1996 Compared with Year Ended December 31, 1995
The following table presents certain items from MobileMedia's Consolidated
Statement of Operations and certain other information for the periods
indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------------
1995 1996
-------------------------- ----------------------------
(IN THOUSANDS, EXCEPT PERCENTAGE AND UNIT DATA)
<S> <C> <C> <C> <C>
CONSOLIDATED STATEMENT
OF OPERATIONS DATA
Revenues
Services, rents and
maintenance.......... $ 220,745 97.6% $ 568,892 100.1%
Equipment sales and
activation fees...... 32,251 14.3 71,818 12.7
------------- --------- --------------- ----------
Total revenues.......... 252,996 111.9 640,710 112.8
Cost of products sold. (26,885) (11.9) (72,595) (12.8)
------------- --------- --------------- ----------
226,111 100.0 568,115 100.0
Operating expenses
Services, rents and
maintenance.......... 59,800 26.4 144,050 25.4
Selling............... 45,203 20.0 96,817 17.0
General and adminis-
trative.............. 59,034 26.1 218,607 38.5
Impairment of long-
lived assets......... -- -- 792,478 139.5
Restructuring costs... -- -- 4,256 0.7
Depreciation and amor-
tization............. 71,408 31.6 348,698 61.4
------------- --------- --------------- ----------
Total operating ex-
penses................. 235,445 104.1 1,604,906 282.5
------------- --------- --------------- ----------
Operating loss.......... (9,334) (4.1) (1,036,791) (182.5)
Total other expense..... (31,745) (14.0) (92,595) (16.2)
------------- --------- --------------- ----------
Loss before income tax
benefit................ (41,079) (18.1) (1,129,386) (198.7)
Income tax benefit...... -- -- (69,442) 12.2
------------- --------- --------------- ----------
Net loss................ $ (41,079) (18.1)% $ (1,059,944) (186.5)%
============= ========= =============== ==========
OTHER DATA
MobileMedia Adjusted
EBITDA................. $ 62,074 27.5% $ 108,641 19.1%
Cash flows provided by
operating activities... $ 43,849 $ 57,194
Cash flows used in in-
vesting activities..... $(312,698) $(1,028,321)
Cash flows provided by
financing activities... $ 671,794 $ 586,111
ARPU.................... $ 9.64 $ 11.08
Average monthly operat-
ing expense per unit
(1).................... $ 7.17 $ 8.95
Units in service (at end
of period)............. 2,369,101 4,424,107
</TABLE>
- --------
(1)Does not include impact of $792.5 million asset impairment writedown in
1996.
Units in service increased by 2,055,006 to 4,424,107 as of December 31, 1996
when compared to December 31, 1995. The increase was attributable to 1,764,752
units acquired from the MobileComm Acquisition and 290,254 net units acquired
from internal growth through MobileMedia's various sales distribution channels.
148
<PAGE>
Services, rents and maintenance revenues increased 157.7% to $568.9 million
for the year ended December 31, 1996 compared to $220.7 million for the year
ended December 31, 1995 due to additional revenues associated with the
acquisitions and continued growth in the number of units in service. ARPU
increased to $11.08 for the year ended December 31, 1996 from $9.64 for the
year ended December 31, 1995 largely due to the impact of the acquired
subscribers from MobileComm and Dial Page. The ARPU impact of the acquisitions
was partly offset by net units added in 1996 through the reseller distribution
channel at lower ARPU. ARPU also declined as a result of continued competitive
market conditions.
Equipment sales and activation fees increased 122.7% to $71.8 million for the
year ended December 31, 1996 compared to $32.3 million for the year ended
December 31, 1995. The increase in equipment sales is attributable to
MobileMedia's significant presence in retail distribution as a result of the
MobileComm Acquisition. Equipment sales and activation fees, less cost of
products sold, decreased 114.5% to $(0.8) million for the year ended December
31,1996. The decrease is attributable to discounting of equipment selling
prices to large retailers as a means of generating subscriber additions through
the retail distribution channel. Cost of products sold also includes an
writedown of $3.2 million in 1996, reflecting the establishment of a lower of
cost or market reserve for pagers held for resale through MobileMedia's retail
and reseller distribution channels.
Net revenues increased 151.3% to $568.1 million for the year ended December
31, 1996 compared to $226.1 million for the year ended December 31, 1995.
Services, rents and maintenance expenses increased 140.9% to $144.1 million
for the year ended December 31, 1996 compared to $59.8 million for the year
ended December 31, 1995, primarily due to increased expense levels related to
the acquisitions and increased transmitter site lease expenses related to
MobileMedia's nationwide paging network which commenced service on April 1,
1996. The balance of the increase resulted primarily from an increase in
subcontracted paging expense by approximately $6.3 million primarily associated
with the increase in nationwide paging units serviced by networks other than
those owned by MobileMedia and $1.6 million in research and development
expenses related to the development of a two-way wireless subscriber device.
Services, rents and maintenance expenses decreased as a percentage of net
revenues to 25.4% for the year ended December 31, 1996 from 26.4% for the year
ended December 31, 1995.
Selling expenses for the year ended December 31, 1996 increased 114.2% to
$96.8 million from $45.2 million for the year ended December 31, 1995 primarily
due to the increased expense levels related to the acquisitions. Selling
expenses as a percentage of net revenue decreased to 17.0% for the year ended
December 31, 1996 from 20.0% for the year ended December 31, 1995.
General and administrative expenses increased 270.3% to $218.6 million for
the year ended December 31, 1996 compared to $59.0 million for the year ended
December 31, 1995 primarily due to the increased expense levels related to the
acquisitions. General and administrative expenses increased as a percentage of
net revenues to 38.5% for the year ended December 31, 1996 from 26.1% for the
year ended December 31, 1995. The balance of the increase resulted primarily
from increased bad debt expense, customer service expenses related to the
assimilation of MobileComm's customer service functions, and consulting fees
related to the integration of the acquisitions. During the third and fourth
quarters of 1996, MobileMedia experienced significant difficulty in collecting
outstanding accounts receivable. These difficulties resulted primarily from
inaccurate billing and inadequate resolutions of customer problems largely
caused by difficulties of integrating acquisitions. In addition, MobileMedia
paid $2.1 million in separation expenses in the second half of 1996 due to the
departure of several senior executives of MobileMedia and $0.7 million in
separation expenses in the first quarter of 1995 due to the departure of the
Chairman of the Board of Directors of MobileMedia.
Impairment of long-lived assets of $792.5 million included a writedown of
long-lived assets effective December 31, 1996, pursuant to Statement of
Financial Accounting Standards No. 121. (See Note 2 of MobileMedia's Notes to
Consolidated Financial Statements included elsewhere herein).
Restructuring costs of $4.3 million for the year ended December 31, 1996
included legal and professional fees related to various restructuring
activities by MobileMedia prior to the Bankruptcy Filing.
149
<PAGE>
Depreciation and amortization increased 388.3% to $348.7 million for the year
ended December 31, 1996 compared to $71.4 million for the year ended December
31, 1995. The increase was primarily due to additional amortization expenses
related to the acquisitions and increased pager depreciation resulting from a
decrease to the depreciable pager base resulting from unrecoverable subscriber
equipment and a reserve established to lower book values of certain pager
models to current market values. As a percentage of net revenues, depreciation
and amortization expense increased to 61.4% for the year ended December 31,
1996 compared to 31.6% for the year ended December 31, 1995.
Operating loss increased to $1,036.8 million for the year ended December 31,
1996 from $9.3 million for the year ended December 31, 1995. The increase was
primarily due to the impairment writedown of certain long-lived assets and
increased amortization expenses relating to the acquisitions offset by the
increase in net revenues.
Total other expense, principally interest expense, increased 191.7% to $92.6
million for the year ended December 31, 1996 compared to $31.7 million for the
year ended December 31, 1996. The increase was primarily due to additional debt
incurred to finance the acquisitions and capital expenditures.
Loss before income tax benefit, as a result of the above factors, increased
to $1,129.4 million for the year ended December 31, 1996 compared to $41.1
million for the year ended December 31, 1995.
Income tax benefit of $69.4 million resulted from the deferred tax adjustment
attributable to the $792.5 asset impairment writedown effective December 31,
1996.
LIQUIDITY AND CAPITAL RESOURCES
MobileMedia's operations and strategy require the availability of substantial
funds to finance the development and installation of wireless communications
systems, to procure subscriber equipment and to service debt. Historically,
these requirements have been funded by net cash from operating activities,
additional borrowings and capital contributions.
Chapter 11 Filing
On January 30, 1997, Parent and MobileMedia filed voluntary petitions for
relief under the Bankruptcy Code in order to implement an operational and
financial restructuring. Parent and MobileMedia are currently operating their
businesses as debtors-in-possession subject to the jurisdiction of the
Bankruptcy Court. Pursuant to the requirements of the Bankruptcy Code, Parent
and MobileMedia are required to file monthly operating reports with the
appointed United States Trustee. Such reports are publicly available through
the office of the United States Trustee, and copies of such reports to date
have been filed as Current Reports on Form 8-K with the SEC. Financial
statements included in Parent's periodic reports for the months of February,
1997 through June, 1998 were not prepared in accordance with GAAP due to
Parent's inability at the time of such filings to determine the amount of an
impairment loss related to long-lived assets pursuant to Financial Accounting
Standard No. 121, are unaudited and have been revised periodically based on
subsequent determination of changes in facts and circumstances impacting
previously filed unaudited financial statements. The audited financial
statements of MobileMedia included herein reflect adjustments from the
unaudited statements, including but not limited to, an impairment adjustment of
$792.5 million recorded as of December 31, 1996.
Agreement with Key Suppliers
In January 1997, MobileMedia sought approval of the Bankruptcy Court to pay
the pre-petition claims of its Key Suppliers (Motorola, Glenayre, NEC and
Panasonic) in the aggregate amount of $47.4 million, which approval was granted
by the Bankruptcy Court on February 6, 1997. Upon entry of the Bankruptcy
Court's order approving the payments, MobileMedia paid the pre-petition claims
of and entered into supply agreements with each of the Key Suppliers. Each of
the Key Suppliers has been shipping product to MobileMedia in accordance with
its respective supply agreement.
150
<PAGE>
DIP Credit Agreement
In connection with the Bankruptcy Filings, MobileMedia entered into the DIP
Credit Agreement with The Chase Manhattan Bank, as agent (the "Agent"), and
certain other financial institutions (collectively, the "DIP Agreement
Lenders") that initially provided MobileMedia with up to $200.0 million of
post-petition, debtor-in-possession ("DIP") financing. At a hearing on January
30, 1997, the Bankruptcy Court entered an interim order approving the DIP
facility, as a result of which MobileMedia gained access to $70.0 million of
such DIP funds, subject to MobileMedia entering into agreements with its Key
Suppliers to sell equipment and provide services. This condition was satisfied
when MobileMedia entered into such agreements with the Key Suppliers.
MobileMedia used $47.4 million of the available $70.0 million of DIP funds to
pay the pre-petition claims of their Key Suppliers, among other things. On
February 19, 1997, the Bankruptcy Court entered a final order approving
MobileMedia's DIP facility, as a result of which MobileMedia gained access to
an additional $30.0 million of DIP funds for a total of $100.0 million. The
remaining $100.0 million of DIP funds became available on May 1, 1997, as a
result of MobileMedia's delivery of a business plan to the Agent by April 15,
1997, which was found to be satisfactory by the financial advisor to the DIP
Agreement Lenders. Under the terms of the DIP Credit Agreement and the order of
the Bankruptcy Court related thereto, MobileMedia is required to make monthly
interest payments to the DIP Agreement Lenders, and monthly "adequate
protection" payments to the pre-petition secured lenders of MobileMedia. During
1997, MobileMedia drew down $47.0 million of borrowings and repaid $37.0
million under the DIP facility. During January and February, 1998 MobileMedia
repaid an additional $10.0 million. As of September 30, 1998 there were no
funded borrowings under the DIP facility. On January 27, 1998, the DIP facility
was amended and, at the request of MobileMedia, reduced from $200.0 million to
$100.0 million. On August 12, 1998 the Debtors received approval from the
Bankruptcy Court to extend the DIP facility to March 31, 1999 and to reduce
availability thereunder further, at the request of MobileMedia, from $100.0
million to $75.0 million.
Capital Expenditures and Commitments
Capital expenditures were $32.4 million for the nine months ended September
30, 1998 compared to $32.3 million for the nine months ended September 30, 1997
and $40.6 million for the year ended December 31, 1997 compared to $161.9
million for the year ended December 31, 1996. Capital expenditures increased
$0.1 million for the nine months ended September 30, 1998 compared to the nine-
month period ended September 30, 1997 and $121.3 million for the year ended
December 31, 1997 compared to the corresponding period in 1996 principally as a
result of lower pager purchases resulting from fewer gross additions and
increased utilization of existing pager inventory stock. The Merger Agreement
contains certain restrictions on MobileMedia's ability to make certain capital
expenditures without the consent of Arch. See "The Merger Agreement--Certain
Covenants and Agreements".
MobileMedia anticipates capital spending for the calendar years 1998 and 1999
to be approximately $60.0 million and $95.0 million, respectively. Capital
spending includes approximately $10.0 million in 1998 and $24.0 million in 1999
for construction of a nationwide N-PCS network providing frequency reuse and
guaranteed message delivery capabilities. The remaining expenditures are
primarily for subscriber equipment and improvements to MobileMedia's one-way
network.
Sources of Funds
MobileMedia's net cash provided by operating activities was $41.6 million for
the nine months ended September 30, 1998 compared to a use of cash of $2.8
million for the nine months ended September 30, 1997. Inventories increased
$0.3 million from December 31, 1996 to September 30, 1998 compared to a
decrease of $9.2 million from December 31, 1996 to September 30, 1997 as a
result of utilizing pager inventory stock and lower sales volume in the retail
sales distribution channel. Accounts payable, accrued expenses and other
liabilities decreased $10.7 million from December 31, 1997 to September 30,
1998 compared to a decrease of $19.4 million from December 31, 1996 to
September 30, 1997. Net accounts receivable decreased $17.3 million from
December 31, 1997 to September 30, 1998 compared to a decrease of $1.1 million
from December 31, 1996 to September 30, 1997 due to improved billing and
collections functions and lower sales volume.
151
<PAGE>
MobileMedia's net cash provided by operating activities was $14.9 million for
the year ended December 31, 1997 compared to $57.2 million for the year ended
December 31, 1996. Inventories decreased $12.5 million from December 31, 1996
to December 31, 1997 as a result of utilizing pager inventory stock and lower
sales volume in the retail sales distribution channel. Accounts payable,
accrued expenses and other liabilities decreased $25.4 million from $181.8
million as of December 31, 1996 to $156.4 million as of December 31, 1997
primarily due to payments to Key Suppliers during 1997. Net accounts receivable
decreased $11.3 million from $66.7 million as of December 31, 1996 to $55.4
million as of December 31, 1997 due to improved billing and collections
functions.
Tower Sale
On September 3, 1998, MobileMedia completed the sale of 166 transmission
towers to Pinnacle for $170.0 million in cash. Under the terms of a lease with
Pinnacle, MobileMedia will continue to own and utilize transmitters, antennas
and other equipment located on these towers for an initial period of 15 years
at an aggregate annual rental of $10.7 million. The sale was accounted for in
accordance with Statement of Financial Accounting Standards No. 28, Accounting
for Sales with Leasebacks, and resulted in a recognized gain of $94.2 million
and a deferred gain of $70.0 million. The deferred gain will be amortized over
the initial lease period of 15 years. Subsequent to the sale, MobileMedia
distributed the $170.0 million in proceeds to its secured creditors, who had a
lien on such assets.
Debt Obligations
As of September 30, 1998, the debt obligations of MobileMedia included a DIP
credit facility. See "--DIP Credit Agreement". MobileMedia is subject to
certain financial and operating restrictions contained in the DIP Credit
Agreement that are customary in credit facilities of this type, including a
limitation on periodic capital expenditures, minimum allowable periodic EBITDA
and retention of a turnaround professional. Additionally, MobileMedia is
required to make monthly interest payments to the DIP Agreement Lenders.
Amounts outstanding under the DIP Credit Agreement bear interest at a rate of
LIBOR plus 250 basis points or Base Rate plus 150 basis points, at the option
of MobileMedia. During 1997, MobileMedia drew down $47.0 million of borrowings
and repaid $37.0 million under the DIP Credit Agreement. During January and
February, 1998 MobileMedia repaid an additional $10.0 million. As of September
30, 1998 there were no funded borrowings under the DIP Credit Agreement.
In addition to the DIP Credit Agreement, the debt obligations of MobileMedia
also include the following:
The MobileMedia 1995 Credit Agreement, a $750.0 million senior secured and
guaranteed credit agreement with a syndicate of lenders including The Chase
Manhattan Bank. As of September 30, 1998 there was $479.0 million outstanding
under this facility consisting of term loans of $101.5 million and $304.6
million and loans under a revolving credit facility totaling $72.9 million.
This agreement was entered into on December 4, 1995, in connection with the
financing of the MobileComm Acquisition. Commencing in 1996, MobileMedia was in
default under this agreement. As a result of such default and the bankruptcy
filing, MobileMedia has no borrowing capacity under this agreement.
MobileMedia's obligations under the MobileMedia 1995 Credit Agreement are
secured by substantially all of the assets of MobileMedia and all of its
subsidiaries, including the capital stock of the subsidiaries, and Parent and
the subsidiaries of MobileMedia have guaranteed all of MobileMedia's
borrowings, including principal and interest. Performance of Parent's
obligations as a guarantor is secured by a pledge of the capital stock of MMC.
Since the petition date, MobileMedia brought current its interest payments and
has been making monthly adequate protection payments to the lenders under the
Pre-Petition 1995 Credit Agreement equal to the amount of interest accruing
under such agreement. On September 3, 1998, MobleMedia repaid $170.0 million of
borrowings under MobleMedia's 1995 Credit Agreement using proceeds from the
sale of 166 transmission towers to Pinnacle.
MobleMedia issued $250.0 million Senior Subordinated MobileMedia 9 3/8% Notes
in November 1995, concurrent with MobileMedia's second offering of Class A
Common Stock (See Note 11 to MobileMedia's Notes to Consolidated Financial
Statements included elsewhere herein). These notes bear interest at a rate of 9
3/8%
152
<PAGE>
payable semiannually on May 1 and November 1 of each year. On November 1, 1996,
MobileMedia did not make its scheduled interest payment on the MobileMedia 9
3/8% Notes which constituted an event of default under this indenture. The
noteholders have not exercised any rights or remedies afforded such holders
(which rights include, but are not limited to, acceleration of the stated
maturity of the notes). Since the Petition Date, any such right or remedy is
subject to the automatic stay created by the Bankruptcy Code and no interest
has accrued on the notes.
MobleMedia issued $210.0 million of Senior Subordinated Deferred Coupon Notes
(the "MobileMedia Deferred Coupon Notes"), at a discount, in November 1993. The
MobileMedia Deferred Coupon Notes accrete at a rate of 10.5%, compounded
semiannually, to an aggregate principal amount of $210.0 million by December 1,
1998 after which interest is paid in cash at a rate of 10.5% and is payable
semiannually. By virtue of the missed interest payments on the MobileMedia 9
3/8% Notes and the MobileMedia 1995 Credit Agreement, an event of default has
occurred under this indenture. The noteholders have not exercised any rights or
remedies afforded such holders (which rights include, but are not limited to,
acceleration of the stated maturity of the notes). Since the Petition Date, any
such right or remedy is subject to the automatic stay created by the Bankruptcy
Code and no interest has accrued on the notes.
Other Matters
Prior to the Bankruptcy Filing, five actions allegedly arising under the
federal securities laws were filed against MobileMedia and certain of its
present and former officers, directors and underwriters in the United States
District Court for the District of New Jersey. These actions were subsequently
consolidated as In re MobileMedia Securities Litigation, No. 96-5723 (AJL). The
consolidated amended complaint was filed on November 21, 1997. The Complaint
does not name MobileMedia as a defendant.
In June 1997, the Debtors initiated an adversary proceeding in the Bankruptcy
Court to stay the prosecution of the New Jersey Actions. Pursuant to a
stipulation entered into among MobileMedia and the plaintiffs in the New Jersey
Actions and "So Ordered" by the Bankruptcy Court on October 31, 1997, the
plaintiffs in the New Jersey Actions could conduct only limited discovery in
connection with the New Jersey Actions and could not file any pleadings, except
responses to motions to dismiss, until the earlier of September 30, 1998 or the
effective date pursuant to a plan of reorganization. On October 21, 1998,
defendants' motion to dismiss The New Jersey Actions filed with the New Jersey
District Court on January 16, 1998 was denied.
In addition to the New Jersey Actions, the two California Actions were filed
in September 1997 in the United States District Court for the Northern District
of California and the Superior Court of California naming as defendants certain
former officers and certain present and former directors of MobileMedia,
certain investment entities and MobileMedia's independent auditors. MobileMedia
is not named as defendant in the California Actions.
On November 4, 1997, MobileMedia commenced an adversary proceeding in the
Bankruptcy Court seeking to stay the prosecution of the California Actions
against the named defendants. At hearings held on December 10, 1997 and May 29,
1998, the Bankruptcy Court enjoined the plaintiffs in the California Actions
until September 15, 1998 from taking certain actions in connection with the
California Actions.
Neither the New Jersey Actions nor the California Actions name MobileMedia as
a defendant. However, proofs of claim have been filed against MobileMedia by
the plaintiffs in the New Jersey Actions, and both the New Jersey Actions and
the California Actions may give rise to claims against MobileMedia's Directors,
Officers and Corporate Liability Insurance Policy. Under the Amended Plan,
these claims will receive no distributions.
RISKS RELATING TO YEAR 2000
Computer systems were originally designed to recognize calendar years by the
last two digits in the date code field. Beginning in the year 2000, these date
code fields will need to accept four digit entries to distinguish twenty-first
century dates from twentieth century dates. Any of MobileMedia's computer
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000. This could result in a system
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failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities. As a result, within the next
year, the computerized systems (including both information and non-information
technology systems) and applications used by MobileMedia will need to be
reviewed, evaluated and, if and where necessary, modified or replaced to ensure
that all financial, information and operating systems are Year 2000 compliant.
State of Readiness
MobileMedia has formed an internal task force comprised of representatives of
its various relevant departments to address Year 2000 compliance matters. The
task force has undertaken a preliminary review of internal and external areas
that are likely to be affected by Year 2000 compliance matters and has
classified the various areas as mission critical, important or non-
critical/non-important. MobileMedia also expects to hire outside consultants to
review MobileMedia's testing methodology and test results, to assess its
contingency planning and to provide general oversight relating to Year 2000
compliance matters.
With respect to internal matters, MobileMedia has completed a review of its
hardware and software to determine whether its business-related applications
(including applications relating to distribution, finance, inventories,
operations, pager activation, purchasing and sales/marketing) will be year 2000
compliant. In addition, in the last quarter of 1998, programs designed to
identify Year 2000 problems associated with dates embedded in certain business-
related files were created and run to identify any Year 2000 compliance issues.
While the results of the tests are still being analyzed, relatively few Year
2000 problems were identified. Additional testing is scheduled for the first
quarter of 1999, including testing of MobileMedia's financial and human
resource software packages. There can be no assurance, however, that such
testing has, or will, detect all compliance issues related to the Year 2000
problem.
With respect to external matters, MobileMedia has distributed questionnaires
and requests for certification to its mission critical vendors and is in the
process of obtaining and reviewing the responses thereto. The questionnaires
have requested information concerning embedded technologies of such vendors,
the hardware and software applications used by such vendors and the Year 2000
compliance efforts of such vendors relating thereto.
Estimated Year 2000 Compliance Costs
MobileMedia has an information technology staff of approximately 68 people
that has addressed technical issues relating to the Year 2000 compliance
matters. To date, MobileMedia has incurred approximately $50,000 in costs
(excluding in-house labor and hardware) in connection with Year 2000 compliance
matters. In addition, MobileMedia has purchased upgraded hardware at a cost of
approximately $150,000 for use as redundant equipment in testing for Year 2000
problems in an isolated production environment. MobileMedia estimates that it
will expend approximately $200,000 on additional software and other items
related to the Year 2000 compliance matters.
In addition, MobileMedia estimates that it will incur approximately $200,000
in costs relating to Year 2000 remediation efforts for its paging network
hardware. MobileMedia has also upgraded its paging network hardware over the
fiscal year 1998 and plans further upgrades in fiscal year 1999. Such upgrades
have not been and are not expected to be purchased solely for remediation of
the Year 2000 compliance problems; such upgrades are not themselves expected to
have Year 2000 compliance problems.
Risks relating to Year 2000 Compliance Matters
MobileMedia has a goal to become Year 2000 compliant with respect to internal
matters during calendar year 1999. Although MobileMedia has begun and is
undertaking testing of its internal business-related hardware and software
applications, there can be no assurances that such testing will detect all
applications that may be affected by Year 2000 compliance problems. With
respect to external matters, due to the multi-dependent and interdependent
issues raised by Year 2000 compliance, including many factors beyond its
control, MobileMedia
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may face the possibility that one or more of its mission critical vendors, such
as its utilities, telephone carriers, equipment manufacturers or satellite
carriers, may not be Year 2000 compliant on a timely basis. Because of the
unique nature of such vendors, alternate providers may not be available.
Finally, MobileMedia does not manufacture any of the pagers, paging-related
hardware or network equipment used by MobileMedia or its customers in
connection with MobileMedia's paging operations. Although MobileMedia has
tested such equipment, it has also relied upon the representations of its
vendors with respect to their Year 2000 readiness. MobileMedia can give no
assurance as to the accuracy of such vendors' representations.
Contingency Planning
MobileMedia has begun the process of assessing contingency plans that might
be available in the event of either internal or external Year 2000 compliance
problems. To this end, MobileMedia's various internal departments have begun to
prepare assessments of potential contingency alternatives. The Task Force will
undertake a review of these assessments in respect of application of
contingency plans on a department-by-department basis and on a company-wide
basis. MobileMedia intends to complete its contingency planning in respect of
Year 2000 compliance during calendar year 1999.
New Authoritative Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130 "Reporting Comprehensive Income" ("SFAS
No. 130"), which is effective for years beginning after December 15, 1997. SFAS
No. 130 establishes standards for reporting and display of comprehensive income
and its components (revenues, expenses, gains, and losses) in a full set of
general-purpose financial statements. SFAS No. 130 requires that all items that
are required to be recognized under accounting standards as components of
comprehensive income be reported in a financial statement that is displayed
with the same prominence as other financial statements. SFAS No. 130 is
effective for financial statements for fiscal years beginning after December
15, 1997. MobileMedia's management does not anticipate that the adoption of
SFAS No. 130 will have any effect on MobileMedia's reporting.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131 "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS No. 131") which is effective for
years beginning after December 15, 1997. SFAS No. 131 establishes standards for
the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports. It also establishes standards for related disclosures about products
and services, geographic areas, and major customers. SFAS No. 131 is effective
for financial statements for fiscal years beginning after December 15, 1997,
and therefore MobileMedia will adopt the new requirements retroactively in
1998. MobileMedia's management has not completed its review of SFAS No. 131,
but does not anticipate that the adoption of this statement will have a
significant effect on MobileMedia's reporting.
In April 1998, the Accounting Standards Executive Committee of the Financial
Accounting Standards Board issued SOP 98-5, "Reporting Costs of Start-Up
Activities", which requires costs of start-up activities and organization costs
to be expensed as incurred. Initial application of SOP 98-5 will be reported as
the cumulative effect of a change in accounting principle. MobileMedia intends
to adopt SOP 98-5 effective January 1, 1999. The adoption of SOP 98-5 is not
expected to have a material effect on MobileMedia's financial position or
results of operation.
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DESCRIPTION OF ARCH SECURITIES
The authorized capital stock of Arch consists of 75,000,000 shares of Arch
Common Stock, $.01 par value per share, and 10,000,000 shares of Preferred
Stock, $.01 par value per share. As of the Record Date, there were 21,067,110
outstanding shares of Arch Common Stock held by 171 stockholders of record,
and 250,000 shares of Series C Preferred Stock held by 10 stockholders of
record. Upon approval of the Charter Amendment Proposal, and the filing of a
Certificate of Amendment with the Secretary of State of the State of Delaware,
the Arch Certificate will be amended to increase the number of authorized
shares of Arch Common Stock to 365,000,000 shares, of which 65,000,000 will be
designated Class B Common Stock, and to authorize the issuance of 65,000,000
shares of Class B Common Stock, $.01 par value per share.
Arch will issue (i) Rights to the holders of Class 6 claims, which will
permit such holders to acquire shares of Arch Combined Common Stock at a price
of $2.00 per share and (ii) Arch Stockholder Rights to the stockholders of
Arch on a record date to be determined by the Arch Board which will permit
such stockholders to acquire shares of Arch Common Stock at a price of $2.00
per share or Arch Participation Warrants to the extent such Arch Stockholder
Rights are not exercised.
The following summary of certain provisions of Arch Common Stock, Class B
Common Stock, Series C Preferred Stock, Arch Warrants, Arch Certificate and
Arch By-laws is not intended to be complete and is qualified by reference to
the provisions of applicable law and to the Arch Certificate and Arch By-laws.
ARCH COMMON STOCK
Holders of Arch Common Stock are entitled to one vote per share, to receive
dividends when and if declared by the Arch Board and, subject to any
participating or similar rights of any series of Arch Preferred Stock at the
time outstanding, to share ratably in the assets of Arch legally available for
distribution to its stockholders in the event of liquidation. Holders of Arch
Common Stock will have no preemptive, subscription, redemption or conversion
rights. All shares of Arch Common Stock issued in the Merger will be fully
paid and nonassessable. The holders of Arch Common Stock do not have
cumulative voting rights.
CLASS B COMMON STOCK
The Class B Common Stock will be identical in all respects to Arch Common
Stock, except that holders of Class B Common Stock will not be entitled to
vote in the election of directors and will be entitled to 1/100th of a vote
per share with respect to all other matters. Except as otherwise required by
law, Class B Common Stock will vote as a single class together with the Arch
Common Stock.
The Class B Common Stock will only be issued to any person or group, or the
Standby Purchasers and their affiliates, to the extent that such person or
group, or Standby Purchasers and their affiliates would own, in the aggregate,
more than 49.0% of the outstanding shares of capital stock of Arch generally
entitled to vote in the election of directors or more than 49.0% of the voting
power of the outstanding voting shares upon consummation of the Merger,
assuming the conversion of all convertible securities and assuming the
exercise of all warrants held by the Standby Purchasers and their affiliates,
or such person or group. Any shares of Class B Common Stock transferred by any
Standby Purchaser to any transferee other than another Standby Purchaser will
automatically convert into an equal number of shares of Arch Common Stock.
Class B Common Stock is being used so that the issuance of Arch Combined
Common Stock to the Standby Purchasers in the Merger will not trigger the
change of control repurchase provisions contained in the indentures governing
certain notes previously issued by Arch and ACI. See "Risk Factors--
Uncertainties Related to the Merger and the Reorganization--Certain Risks
Associated with the Merger" and "Description of Certain Arch Indebtedness".
ARCH PREFERRED STOCK
The Arch Board is authorized, without any further action by the stockholders
of Arch, to issue preferred stock from time to time in one or more series and
to fix, as to any such series, the voting rights, if any, applicable
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to such series and such other designations, preferences and special rights as
the Arch Board may determine, including dividend, conversion, redemption and
liquidation rights and preferences. Arch does not have any present plans to
issue shares of its preferred stock, other than the shares of Series C
Preferred Stock currently outstanding.
ARCH SERIES C PREFERRED STOCK
The Series C Preferred Stock has the rights and preferences summarized below:
Conversion. The Series C Preferred Stock is convertible into Arch Common
Stock at an initial conversion price of $5.50 per share, subject to certain
adjustments. Such adjustments include the issuance of Arch Common Stock (or
rights or options therefor) at a price less than the market price of Arch
Common Stock. If the market price of the Arch Common Stock at the record date
established for the Arch Rights Offering exceeds $2.00, the conversion price of
the Series C Preferred Stock would be reduced and additional shares of Arch
Common Stock would be issuable upon the conversion of Series C Preferred Stock.
Dividends. The Series C Preferred Stock earns dividends at an annual rate of
8.0% payable when declared quarterly in cash or, at Arch's option, through the
issuance of shares of Arch Common Stock valued at 95% of the then prevailing
market price or, if not paid quarterly, accumulating and payable upon
redemption or conversion of the Series C Preferred Stock or liquidation of
Arch.
Voting Rights. So long as at least 50% of the Series C Preferred Stock
remains outstanding, the holders of the Series C Preferred Stock have the
right, voting as a separate class, to designate one member of the Boards of
Directors of Arch and ACI and such director has the right to be a member of any
committee of either such Board of Directors. On all other matters, the Series C
Preferred Stock votes as a single class with Arch Common Stock. Each share of
Series C Preferred Stock is currently entitled to 18.5 votes.
Redemption. The Series C Preferred Stock permits the holders in the year 2005
to require Arch to redeem the Series C Preferred Stock, for, at Arch's option,
either cash or Arch Common Stock valued at 95% of the then prevailing market
price of Arch Common Stock and is subject to redemption for cash or Arch Common
Stock at ACI's option in certain circumstances.
Liquidation Preference. Upon liquidation, dissolution or winding up of Arch,
the holders of Series C Preferred Stock will be entitled, before any
distribution or payment is made upon any Arch Common Stock, to be paid (i)
$100.00 per share of Series C Preferred Stock (subject to certain adjustments),
plus (ii) accrued and unpaid dividends on such shares of Series C Preferred
Stock before any amounts paid to the holders of shares of Arch Common Stock. In
the event that the assets of Arch are insufficient to permit full payment to
the holders of Series C Preferred Stock as provided above, then the assets will
be distributed pro rata among the holders of the Series C Preferred Stock.
ARCH PARTICIPATION WARRANTS
On the terms and subject to the conditions set forth in the Amended Plan and
the Merger Agreement, Arch will issue and deliver: (a) Arch Participation
Warrants to the Standby Purchasers to acquire up to 3,675,659 shares of Arch
Common Stock and (b) Arch Participation Warrants to the Arch stockholders (to
the extent Arch stockholders do not exercise the Arch Stockholder Rights) to
acquire up to 44,893,166 shares of Arch Common Stock. The shares of Arch
Combined Common Stock purchasable upon exercise of the Arch Participation
Warrants are hereinafter referred to as the "Arch Participation Warrant
Shares." The Warrant Exercise Price will be a fixed exercise price equal to the
amount that would result at September 1, 2001 from an investment of $2.00 on
the Effective Date assuming a 20% per annum internal rate of return.
Each Arch Participation Warrant, including without limitation any Arch
Participation Warrants that may be issued upon partial exercise, replacement,
or transfer of Arch Participation Warrants, will be evidenced by, and subject
to the terms of, a warrant certificate (the "Arch Participation Warrant
Certificate").
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The Bank of New York (the "Warrant Agent"), on behalf of Arch, will keep or
cause to be kept, at the principal office of the Warrant Agent designated for
such purpose, books for registration and transfer of the Arch Participation
Warrant Certificates issued hereunder by Arch. Arch and the Warrant Agent will
be entitled to treat the registered holder of any Arch Participation Warrant
Certificate as the sole owner of the Arch Participation Warrants represented by
such Arch Participation Warrant Certificate for all purposes and will not be
bound to recognize any equitable or other claim or interest in such Arch
Participation Warrants on the part of any other person.
Arch Participation Warrants may be exercised by the holder thereof, in whole
or in part, at any time and from time to time after the Effective Time and
prior to 5:00 p.m., New York City time, on September 1, 2001 provided that
holders shall be able to exercise their Arch Participation Warrants only if (i)
(A) the Warrant Shares Registration Statement (as defined therein) is then in
effect and Arch has delivered to each person exercising an Arch Participation
Warrant a current prospectus meeting the requirements of the Securities Act, or
(B) the exercise of the Arch Participation Warrants is exempt from the
registration requirements of the Securities Act, and (ii) the Arch
Participation Warrant Shares are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
holder of the Arch Participation Warrants to be exercised, and, if applicable,
the persons to whom it is proposed that the Arch Participation Warrant Shares
be issued on exercise of the Arch Participation Warrants, reside.
The Warrant Exercise Price and the number and kind of Arch Participation
Warrant Shares purchasable upon exercise of the Arch Participation Warrants
will be subject to adjustment from time to time upon the occurrence of certain
events as provided in the Arch Participation Warrant Agreement.
Arch may reduce the Warrant Exercise Price by any amount for any period of
time, if the period is at least 20 calendar days and if the reduction is
irrevocable during the period; provided that in no event may the Warrant
Exercise Price be less than the par value of Arch Common Stock.
Neither Arch nor the Warrant Agent will be required to issue fractional Arch
Participation Warrant Shares or fractional interests in any other securities
upon the exercise of Arch Participation Warrants.
Arch will deliver to the Warrant Agent, within 15 calendar days after it
files them with the SEC, copies of its annual report and other information,
documents, and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) that Arch is
required to file with the SEC. To the extent any such information, documents,
or other reports are required to be sent by Arch to the holders of outstanding
Arch Common Stock, the Company will simultaneously send copies thereof to the
holders of Arch Participation Warrants.
FOREIGN OWNERSHIP RESTRICTIONS
Under the Communications Act, more than 25% of Arch capital stock may not be
owned or voted by aliens or their representatives, a foreign government or its
representative or a foreign corporation if the FCC finds that the public
interest would be served by denying such ownership. See "Industry Overview--
Regulation". Accordingly, the Arch Certificate provides that Arch may redeem
outstanding shares of its stock from certain holders if the continued ownership
of such stock by such holders (because of their foreign citizenship or
otherwise) would place the FCC licenses held by Arch in jeopardy. The Arch
Certificate provides that required redemptions, if any, will be made at a price
per share equal to the lesser of the Fair Market Value of the shares (as
defined in the Arch Certificate) or, if such shares were purchased within one
year prior to the redemption, the purchase price of such shares.
ANTI-TAKEOVER PROVISIONS
Certain provisions of Delaware law and the Arch Certificate and Arch By-Laws
may have the effect of delaying, making more difficult or preventing a change
in control or acquisition of Arch by means of a tender
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offer, a proxy contest or otherwise. These provisions, as summarized below, are
expected to discourage certain types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of
Arch first to negotiate with Arch. Arch believes that the benefits of increased
protection of Arch's potential ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure Arch outweigh the
disadvantages of discouraging such proposals because, among other things,
negotiations with respect to such proposals could result in an improvement of
their terms.
RIGHTS PLAN
Arch has a stockholders rights plan (the "Preferred Stock Rights Plan")
pursuant to which each outstanding share of Arch Common Stock has attached to
it one preferred stock purchase right (a "Purchase Right") to purchase from
Arch a unit (a "Preferred Stock Unit") consisting of one one-thousandth of a
share of Arch Series B Preferred stock at a cash purchase price of $150.00 per
Preferred Stock Unit, subject to adjustment. Pursuant to the Preferred Stock
Rights Plan, the Purchase Rights automatically attach to and trade together
with each share of Arch Common Stock.
The Purchase Rights are not exercisable or transferable separately from the
shares of Arch Common Stock to which they are attached until the earlier of (i)
ten business days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more (up to 33%
in certain specified circumstances described below) of the outstanding shares
of the Arch Common Stock (a "Stock Acquisition Date"), or (ii) ten business
days following the commencement of a tender offer or exchange offer that would
result in a person or group individually owning 30% or more of then outstanding
shares of Arch Common Stock.
In the event that any person or entity becomes an Acquiring Person (except
pursuant to an offer for all outstanding shares of Arch Common Stock which
Arch's independent directors determine to be fair to, and in the best interests
of, Arch's stockholders), each holder of a Purchase Right other than the
Acquiring Person will thereafter have the right to receive, upon exercise, that
number of shares of Arch Common Stock which equals the exercise price of the
Purchase Right divided by one-half of the current market price of Arch Common
Stock at the Stock Acquisition Date. However, in any such event, all Purchase
Rights that are beneficially owned by an Acquiring Person shall be null and
void.
In the event that a Stock Acquisition Date occurs and (i) Arch is acquired in
a merger or other business combination transaction in which Arch is not the
surviving corporation or the Arch Common Stock is changed or exchanged (other
than a merger that follows an offer determined to be fair by Arch's independent
directors as described above) or (ii) 50% or more of Arch's assets or earning
power is sold or transferred, each holder of a Purchase Right (except Purchase
Rights which previously have been voided as described above) shall thereafter
have the right to receive, upon exercise, that number of shares of common stock
of the acquiring company which equals the exercise price of the Purchase Rights
divided by one-half of the current market price of such common stock at the
Stock Acquisition Date.
The Purchase Rights are not currently exercisable. In connection with the
execution of the Merger Agreement, Arch amended the Preferred Stock Rights Plan
to permit each Standby Purchaser to acquire, without becoming an Acquiring
Person, up to the sum of (i) the number of shares distributed to it from the
Creditor Stock Pool, (ii) the number of shares purchased by it pursuant to the
exercise of Purchase Rights (iii) the number of shares purchased directly
pursuant to the Standby Purchase Agreements and (iv) 5% of the outstanding Arch
Common Stock (but in no event more than a total of 33%, 27%, 26% or 15.5% of
such outstanding stock in the case of W.R. Huff, Whippoorwill, CS First Boston
and Northwestern Mutual and their affiliates, respectively). The Amended
Preferred Stock Rights Plan further provides that the Standby Purchasers will
not be deemed to be a group for purposes of the Preferred Stock Rights Plan
solely because of performance of their commitments under the Standby Purchase
Agreements.
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CLASSIFIED BOARD OF DIRECTORS
The Arch Certificate and Arch By-laws provide that the Arch Board will be
divided into three classes, with the terms of each class expiring in a
different year. The Arch By-laws provide that the number of directors will be
fixed from time to time exclusively by the Arch Board, but shall consist of not
more than 15 nor less than three directors. A majority of the Arch Board then
in office has the sole authority to fill in any vacancies on the Arch Board.
The Arch Certificate provides that directors may be removed only by the
affirmative vote of holders of at least 80% of the voting power of all then
outstanding shares of stock, voting together as a single class.
STOCKHOLDER ACTIONS AND MEETINGS
The Arch Certificate provides that stockholder action can be taken only at an
annual or special meeting of stockholders and prohibits stockholder action by
written consent in lieu of a meeting. The Arch Certificate and Arch By-Laws
provide that special meetings of stockholders can be called by the Chairman of
the Arch Board, pursuant to a resolution approved by a majority of the total
number of directors which Arch would have if there were no vacancies on the
Arch Board, or by stockholders owning at least 20% of the stock entitled to
vote at the meeting. The business permitted to be conducted at any special
meeting of stockholders is limited to the business brought before the meeting
by the Chairman of the Arch Board, or at the request of a majority of the
members of the Arch Board, or as specified in the stockholders' call for a
meeting. The Arch By-laws set forth an advance notice procedure with regard to
the nomination, other than by or at the direction of the Arch Board, of
candidates for election as directors. The Arch By-laws provide that any
stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors only if written notice
of such stockholder's intent to make such nomination or nominations has been
given to the Secretary of Arch not later than 80 days prior to the date of any
annual or special meeting. In the event that the date of such annual or special
meeting was not publicly announced by Arch more than 90 days prior to the
meeting, notice from the stockholder must be delivered to the Secretary of Arch
not later than the close of business on the tenth day following the day on
which such announcement of the date of the meeting was communicated to
stockholders. The notice must contain certain information about the proposed
nominee as would be required to be included in a proxy statement filed pursuant
to the SEC's proxy rules had the nominee been nominated by the Arch Board. The
notice must also contain the consent of each nominee to serve as a director of
Arch if so elected and certain information about the stockholder proposing to
nominate such nominee.
AMENDMENT OF CERTAIN PROVISIONS OF THE ARCH CERTIFICATE AND ARCH BY-LAWS
The Arch Certificate requires the affirmative vote of the holders of at least
80% of the voting power of all then outstanding shares of stock, voting
together as a single class, to amend certain provisions of the Arch
Certificate, including provisions relating to the removal of directors, the
prohibition on stockholder action by written consent in lieu of a meeting, the
procedural requirements of stockholder meetings and the adoption, amendment and
repeal of certain articles of the Arch By-laws.
CONSIDERATION OF NON-ECONOMIC FACTORS IN ACQUISITIONS
The Arch Certificate empowers the Arch Board, when considering a tender offer
or merger or acquisition proposal, to take into account factors in addition to
potential economic benefits to stockholders. Such factors may include: (i)
comparison of the proposed consideration to be received by stockholders in
relation to the then current market price of the capital stock, the estimated
current value of Arch in a freely negotiated transaction, and the estimated
future value of Arch as an independent entity; (ii) the impact of such a
transaction on the subscribers and employees of Arch and its effect on the
communities in which Arch operates; and (iii) the ability of Arch to fulfill
its objectives under applicable statutes and regulations.
RESTRICTIONS ON CERTAIN PURCHASES OF STOCK BY ARCH
The Arch Certificate prohibits Arch from repurchasing any shares of Arch's
stock from any person, entity or group that beneficially owns 5% or more of
Arch's then outstanding voting stock at a price exceeding the
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average closing price for the twenty trading business days prior to the
purchase date, unless a majority of Arch's Disinterested Stockholders approves
the transaction. "Disinterested Stockholders" means each holder of less than 5%
of the voting power of Arch. This restriction on purchases by Arch does not
apply to any offer to purchase a class of Arch's stock which is made on the
same terms and conditions to all holders of the class of stock, to any purchase
of stock owned by such a 5% stockholder occurring more than two years after
such stockholder's last acquisition of Arch's stock, to any purchase of Arch's
stock in accordance with the terms of any stock option or employee benefit
plan, or any purchase at prevailing marketing prices pursuant to a stock
repurchase program.
"BLANK CHECK" PREFERRED STOCK
The Arch Board is authorized, without any further action by the stockholders
of Arch, to issue preferred stock from time to time in one or more series and
to fix, as to any such series, the voting rights, if any, applicable to such
series and such other designations, preferences and special rights as the Arch
Board may determine, including dividend, conversion, redemption and liquidation
rights and preferences. The issuance of preferred stock, while providing
desirable flexibility in connection with possible financings, acquisitions and
other corporate purposes, could, among other things, adversely affect the
voting power of the holders of Arch Common Stock and, under certain
circumstances, be used as a means of discouraging, delaying or preventing a
change of control in Arch.
DELAWARE ANTI-TAKEOVER STATUTE
Section 203 of the DGCL is applicable to publicly held corporations organized
under the laws of Delaware, including Arch. Subject to certain exceptions set
forth therein, Section 203 of the DGCL provides that a corporation shall not
engage in any business combination with any "interested stockholder" for a
three-year period following the date that such stockholder becomes an
interested stockholder unless (a) prior to such date, the board of directors of
the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder, (b) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding certain shares) or (c) on or subsequent to such date, the
business combination is approved by the board of directors of the corporation
and by the affirmative vote of at least 66 2/3% of the outstanding voting stock
which is not owned by the interested stockholder. Except as specified therein,
an interested stockholder is defined to mean any person that (i) is the owner
of 15% or more of the outstanding voting stock of the corporation or (ii) is an
affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation at any time within three years
immediately prior to the relevant date and the affiliates and associates of
such person referred to in (i) or (ii) of this sentence. Under certain
circumstances, Section 203 of the DGCL makes it more difficult for an
interested stockholder to effect various business combinations with a
corporation for a three-year period, although the stockholders may, by adopting
an amendment to the corporation's certificate of incorporation or by-laws,
elect not to be governed by this section, effective twelve months after
adoption. The Arch Certificate and the Arch By-laws do not exclude Arch from
the restrictions imposed under Section 203 of the DGCL. It is anticipated that
the provisions of Section 203 of the DGCL may encourage companies interested in
acquiring Arch to negotiate in advance with the Arch Board.
DIRECTOR LIABILITY AND INDEMNIFICATION
Under the DGCL, a corporation has the power to indemnify any director or
officer against expenses, judgments, fines and settlements incurred in a
proceeding, other than an action by or in the right of the corporation if the
person acted in good faith and in a manner that the person reasonably believed
to be in the best interests of the corporation or not opposed to the best
interests of the corporation, and, in the case of a criminal proceeding, had no
reason to believe the conduct of the person was unlawful. In the case of an
action by or in the right of the corporation, the corporation has the power to
indemnify any officer or director against expenses incurred in defending or
settling the action if such person acted in good faith and in a manner such
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person reasonably believed to be in or not opposed to the best interests of the
corporation; provided, however, that no indemnification may be made when a
person is adjudged liable to the corporation, unless a court determines such
person is entitled to indemnity for expenses, and then such indemnification may
be made only to the extent that such court shall determine. The DGCL requires
that to the extent an officer or director of a corporation is successful on the
merits or otherwise in defense of any third-party or derivative proceeding, or
in defense of any claim, issue or matter therein, the corporation must
indemnify the officer or director against expenses incurred in connection
therewith.
Under the DGCL, a corporation may adopt a provision in its certificate of
incorporation eliminating or limiting the personal liability of a director to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that such provision may not
eliminate or limit director monetary liability for: (i) breaches of the
director's duty of loyalty to the corporation or its stockholders; (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of laws; (iii) the payment of unlawful dividends or unlawful stock
repurchases or redemptions; or (iv) transactions in which the director received
an improper personal benefit.
The Arch Certificate provides that Arch will, to the fullest extent permitted
by Section 145 of the DGCL, indemnify all persons whom it has the power to
indemnify against all of the costs, expenses and liabilities incurred by them
by reason of having been officers or directors of Arch, or any subsidiary of
Arch, or of any other corporation for which such persons acted as officer or
director at the request of Arch.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for Arch Common Stock is The Bank of New
York, 101 Barclay Street, New York, New York 10286.
REGISTRATION RIGHTS
Arch is granting certain registration rights to the Unsecured Creditors in
connection with the proposed Merger. See "The Merger Agreement--Related
Agreements--Registration Rights Agreements". The holders of Series C Preferred
Stock and the former stockholders of PageCall are also entitled to certain
registration rights. See "Business--Arch--Investments in Narrowband PCS
Licenses".
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DESCRIPTION OF CERTAIN ARCH INDEBTEDNESS
API CREDIT FACILITY
API, The Bank of New York, Royal Bank of Canada and Toronto Dominion
(Texas), Inc., as managing agents, together with certain other lenders are
parties to the API Credit Facility in the current total amount of $400.0
million, consisting of the $175.0 million reducing revolving Tranche A
Facility, (ii) the $100.0 million 364-day revolving credit Tranche B Facility
and (iii) the $125.0 million Tranche C Facility.
The Tranche A Facility is subject to scheduled quarterly reductions
commencing on September 30, 2000 and will mature on June 30, 2005. The term
loan portion of the Tranche B Facility will be amortized in quarterly
installments commencing September 30, 2000, with an ultimate maturity date of
June 30, 2005. The Tranche C Facility will be amortized in annual installments
commencing December 31, 1999, with an ultimate maturity date of June 30, 2006.
API's obligations under the API Credit Facility are secured by its pledge of
the capital stock of the former ACE operating subsidiaries. The API Credit
Facility is guaranteed by Arch, ACI and the former ACE operating subsidiaries.
Arch's guarantee is secured by a pledge of Arch's stock and notes in ACI, and
the guarantees of the former ACE operating subsidiaries are secured by a
security interest in those assets of such subsidiaries which were pledged
under ACE's former credit facility. Lenders representing 40% of the API Credit
Facility have the right to require ACI and its subsidiaries to grant security
interests in certain additional assets not currently pledged thereunder,
subject to granting a ratable security interest to holders of the ACI 9 1/2%
Notes and the ACI 14% Notes.
Borrowings under the API Credit Facility bear interest based on a reference
rate equal to either The Bank of New York's Alternate Base Rate or The Bank of
New York's LIBOR rate, in each case plus a margin based on ACI's or API's
ratio of total debt to annualized EBITDA.
The API Credit Facility requires payment of fees on the daily average amount
available to be borrowed under the Tranche A Facility and the Tranche B
Facility, which fees vary depending on ACI's or API's ratio of total debt to
annualized EBITDA.
The API Credit Facility contains restrictions that limit, among other
things: additional indebtedness and encumbrances on assets; cash dividends and
other distributions; mergers and sales of assets; the repurchase or redemption
of capital stock; investments; acquisitions that exceed certain dollar
limitations without the lenders' prior approval; and prepayment of
indebtedness other than indebtedness under the API Credit Facility. In
addition, the API Credit Facility requires Arch and its subsidiaries to meet
certain financial covenants, including covenants with respect to ratios of
EBITDA to fixed charges, EBITDA to debt service, EBITDA to interest service
and total indebtedness to EBITDA.
On November 16, 1998, all API lenders approved an increase to the API
Credit Facility from $400.0 million to $600.0 million. The $200.0 million
increase will be allocated among the senior credit facilities as follows: (i)
the Tranche A Facility will increase by up to $25.0 million to a maximum of
$200.0 million, (ii) the Tranche B Facility will increase by up to $25.0
million to a maximum of $125.0 million and (iii) the Tranche C Facility will
increase by up to $200.0 million to a maximum of $325.0 million. All other
terms and conditions of the API Credit Facility Increase will remain unchanged
except for minor changes to ACI's permitted ratio of total debt to annualized
EBITDA and the margins on which the interest rates on borrowings are based.
See "Risk Factors--Risks Related to Arch--Merger Cash Requirements".
BRIDGE FACILITY
ACI and The Bear Stearns Companies, Inc. (an affiliate of Bear Stearns), The
Bank of New York, TD Securities (USA) Inc. and Royal Bank of Canada
(collectively, the "Bridge Lenders") have executed a commitment letter for the
Bridge Facility on the following terms. Under the Bridge Facility, a $120.0
million
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term loan will be available to ACI in a single drawing upon the closing of the
Merger (the "Bridge Loan"). The Bridge Loan will bear interest equal to the
LIBOR rate plus 500 basis points (currently a total of 10.19%), increasing by
50 basis points each quarter after funding to a maximum rate of 18%. If not
paid on or before maturity 180 days after the closing of the Merger, the Bridge
Loan will convert into a term loan (the "Term Loan") due in December 2006. The
Term Loan will bear interest at the interest rate under the Bridge Facility at
the maturity of the Bridge Loan plus 50 basis points increasing by 50 basis
points each quarter after funding to a maximum rate of 18%. Arch will be
required to grant warrants (the "Bridge Warrants") to the Bridge Lenders for
the purchase of 5.0% of the Arch Common Stock on a fully diluted basis if the
Bridge Loan has not been repaid prior to the Bridge Loan maturity date. Upon
notice from the Bridge Lenders given (a) prior to the Merger but subsequent to
the earlier to occur of (i) January 29, 1999 and (ii) the 30th day prior to the
targeted date of the Merger or (b) at any time after the funding of the Bridge
Loan and prior to the Bridge Loan maturity date, ACI will issue and sell
Planned ACI Notes in an amount at least sufficient to substitute for or
refinance the Bridge Loans on such terms and conditions as may be specified by
the Bridge Lenders, provided however that the interest rate on the Planned ACI
Notes shall be determined by the Bridge Lenders in light of the then prevailing
market conditions, but in no event shall the yield on the Planned ACI Notes
exceed a rate equal to an agreed upon margin over the yield to worst on the ACI
12 3/4% Notes. In the event that Planned ACI Notes are issued after the Merger,
the Bridge Lenders may direct Arch to issue all or a portion of the Bridge
Warrants to the purchasers of the Planned ACI Notes rather than the Bridge
Lenders. The Bridge Facility requires payment of certain fees to the Bridge
Lenders. The fees will vary based on the amount and timing of the Bridge
Facility and the Bridge Loan. The Bridge Lenders have agreed to refund a
portion of the fees if the Bridge Loan is repaid prior to maturity. In
addition, ACI has agreed to permit the Bridge Lenders to act as placement
agents for the conversion of the Bridge Loan into the Term Loan or the issuance
of the Planned ACI Notes for a fee equal to 3.0% of the principal amount so
converted or issued.
The Bridge Facility contains restrictions that are substantially similar to
those contained in the API Credit Facility, including without limitation
restrictions that, among other things, limit additional indebtedness and
encumbrances on assets, cash dividends and other distributions; mergers and
sales of assets; the repurchase or redemption of capital stock; investments;
acquisitions and mergers; and transactions with affiliates or between Arch and
its subsidiaries. In addition, the Bridge Facility requires ACI and its
subsidiaries to meet certain financial covenants, including covenants with
respect to ratios of EBITDA to fixed charges, EBITDA to debt service, EBITDA to
interest expense and total indebtedness to EBITDA.
ACI 9 1/2% NOTES
ACI has outstanding $125.0 million in aggregate principal amount of ACI 9
1/2% Notes. The ACI 9 1/2% Notes accrue interest at the rate of 9.5% per annum,
payable semi-annually on February 1 and August 1. The ACI 9 1/2% Notes are
scheduled to mature on February 1, 2004.
ACI, at its option, may redeem the ACI 9 1/2% Notes as a whole, or from time
to time in part, on or after February 1, 1999 at the following redemption
prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period beginning February 1 of the years indicated
below (in each case together with accrued and unpaid interest to the redemption
date):
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
1999................................ 104.750%
2000................................ 103.167%
2001................................ 101.583%
2002 and thereafter................. 100.000%
</TABLE>
The covenants in the indenture under which the ACI 9 1/2% Notes are
outstanding (the "ACI 9 1/2% Notes Indenture") limit the ability of ACI's
subsidiaries to pay dividends to ACI. Additionally, the ACI 9 1/2% Notes
Indenture imposes limitations on the incurrence of indebtedness, whether
secured or unsecured, by ACI and its
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subsidiaries, on the disposition of assets, on transactions with affiliates, on
guarantees of the obligations of ACI by any of its subsidiaries, on the sale or
issuance of stock by the subsidiaries of ACI and on any merger, consolidation
or sale of substantially all of the assets of ACI.
Upon the occurrence of a "Change of Control", as defined in the ACI 9 1/2%
Notes Indenture, each holder of ACI 9 1/2% Notes has the right to require that
ACI repurchase such holder's ACI 9 1/2% Notes at a repurchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of repurchase. The following constitute a Change of Control
under the ACI 9 1/2% Notes Indenture: (i) the acquisition by a person or group
of beneficial ownership of the majority of the securities of ACI or Arch having
the right to vote in the election of directors; (ii) certain changes in the
boards of directors of ACI or Arch; (iii) the sale or transfer of all or
substantially all of the assets of ACI or (iv) the merger or consolidation of
ACI or Arch with or into another corporation with the effect that a person or
group shall have become the beneficial owner of the majority of the securities
of the surviving corporation having the right to vote in the election of
directors.
The following constitute "Events of Default" under the ACI 9 1/2% Notes
Indenture: (i) a default in the payment of any installment of interest upon any
of the ACI 9 1/2% Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; (ii) a default in the
payment of all or any part of the principal of, or premium, if any, on any of
the ACI 9 1/2% Notes as and when the same shall become due and payable either
at maturity, upon redemption or repurchase, by declaration or otherwise; (iii)
the failure on the part of ACI duly to observe or perform any other of the
covenants or agreements on the part of ACI in the ACI 9 1/2% Notes or in the
ACI 9 1/2% Notes Indenture for a period of 60 days after the date on which
written notice specifying such failure, stating that such notice is a "Notice
of Default" and demanding that ACI remedy the same, shall have been given by
registered or certified mail, return receipt requested, to ACI by the Trustee
(as defined in the ACI 9 1/2% Notes Indenture), or to ACI and the Trustee by
the holders of at least 25% in aggregate principal amount of the ACI 9 1/2%
Notes at the time outstanding; (iv) certain events of bankruptcy, insolvency or
reorganization in respect of ACI or any of its restricted subsidiaries; (v) (A)
a default in payment of the principal of, premium, if any, or interest on any
indebtedness for borrowed money of ACI or any restricted subsidiary in
principal amount aggregating $5.0 million or more, whether such indebtedness
now exists or is hereafter created, when the same shall become due and payable
and continuation of such default after any applicable period of grace or (B) an
event of default as defined in any indenture or instrument evidencing or under
which ACI or any restricted subsidiary has at the date of the indenture or
shall thereafter have outstanding at least $5.0 million aggregate principal
amount of indebtedness for borrowed money shall happen and be continuing and
such indebtedness shall have been accelerated so that the same shall be or
become due and payable, and in any case referred to in the foregoing clause (A)
or (B) such non-payment or acceleration shall not be rescinded or annulled
within 10 days after notice of such default in payment or event of default
shall have been given to ACI by the Trustee (if such event is known to it), or
to ACI and the Trustee by the holders of at least 25% in aggregate principal
amount of the ACI 9 1/2% Notes at the time outstanding; (vi) one or more
judgments, orders or decrees for the payment of money (provided that the amount
of such money judgment shall be calculated net of any insurance coverage that
the insurer has irrevocably acknowledged to ACI as covering such money judgment
in whole or in part) in excess of $5.0 million, whether individually or in an
aggregate amount, shall be entered against ACI or any restricted subsidiary of
ACI or any of their respective properties and shall not be discharged and there
shall have been a period of 60 days during which a stay of enforcement of such
judgment or order, by reason of pending appeal or otherwise, shall not be in
effect; or (vii) the holder of any indebtedness of ACI or any restricted
subsidiary aggregating at least $5.0 million in principal amount that is
secured by a lien on the property or assets of ACI or any restricted subsidiary
(or any agent of such holder of such debt or the trustee or other
representative then acting under any indenture or other instrument under which
such debt is outstanding) shall commence any proceeding, or take any action
(including by way of set-off) to retain in satisfaction of such debt or to
collect on, seize, dispose of or apply in satisfaction of such debt, property
or assets of ACI or any of its restricted subsidiaries having a fair market
value in excess of $5.0 million individually or in the aggregate (including
funds on deposit or held pursuant to lock-box or other similar arrangements).
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ACI 14% NOTES
ACI has outstanding $100.0 million in aggregate principal amount of ACI 14%
Notes. The ACI 14% Notes accrue interest at the rate of ACI 14% per annum,
payable semi-annually on May 1 and November 1. The ACI 14% Notes are scheduled
to mature on November 1, 2004.
ACI may, at its option, redeem the ACI 14% Notes as a whole, or from time to
time in part, at the redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period beginning
November 1 of the years indicated below (in each case together with accrued and
unpaid interest to the redemption date):
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
1999.............................. 107.000%
2000.............................. 104.625%
2001.............................. 102.375%
2002 and thereafter............... 100.000%
</TABLE>
The covenants in the indenture under which the ACI 14% Notes are outstanding
(the "ACI 14% Notes Indenture") limit the ability of ACI and its subsidiaries
to pay dividends to Arch. Additionally, the ACI 14% Notes Indenture imposes
limitations on the incurrence of indebtedness, whether secured or unsecured, by
ACI and its subsidiaries, on the disposition of assets, on transactions with
affiliates, on guarantees of the obligations of ACI by any of its subsidiaries,
on the sale or issuance of stock by the subsidiaries of ACI and on the merger,
consolidation or sale of substantially all of the assets of ACI.
Upon the occurrence of a "Change of Control", as defined in the ACI 14% Notes
Indenture, each holder of ACI 14% Notes has the right to require that ACI
repurchase such holder's ACI 14% Notes at a repurchase price in cash equal to
102% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of repurchase. The following constitute a Change of Control under
the ACI 14% Notes Indenture: (i) the acquisition by a person or group of
beneficial ownership of the majority of the securities of ACI or Arch having
the right to vote in the election of directors; (ii) certain changes in the
boards of directors of ACI or Arch; (iii) the sale or transfer of all or
substantially all of the assets of ACI or (iv) the merger or consolidation of
ACI or Arch with or into another corporation or the merger of another
corporation with or into ACI or Arch with the effect that (A) a person or group
shall have become the beneficial owner of the majority securities of the
surviving corporation having the right to vote in the election of directors or
(B) the securities of ACI or Arch outstanding immediately prior to such
transaction and which represent 100% of the voting securities having the right
to vote in the election of directors are exchanged for cash, securities or
property unless such securities are changed into or exchanged for securities of
the surviving corporation representing a majority of the voting securities
having the right to vote in the election of directors.
The following constitute "Events of Default" under the ACI 14% Notes
Indenture: (i) a default in the payment of any installment of interest upon any
of the ACI 14% Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; (ii) a default in the
payment of all or any part of the principal of, or premium, if any, on any of
the ACI 14% Notes as and when the same shall become due and payable either at
maturity, upon any redemption or repurchase, by declaration or otherwise; (iii)
the failure of ACI to comply with the covenants limiting mergers and sales of
assets; (iv) the failure of ACI to comply with certain other covenants limiting
its ability to incur debt, make restricted payments, impose dividend
restrictions on its subsidiaries, dispose of assets, transact with affiliates,
grant liens, obtain guarantees from its subsidiaries, permit its subsidiaries
to issue stock or suffer a change of control, for a period of 30 days after
notice; (v) the failure on the part of ACI duly to observe or perform any other
of the covenants or agreements on the part of ACI in the ACI 14% Notes or in
the ACI 14% Notes Indenture for a period of 60 days after the date on which
written notice specifying such failure, stating that such notice is a "Notice
of Default" and demanding that ACI remedy the same, shall have been given by
registered or certified mail, return receipt requested, to ACI by the Trustee,
or ACI and the Trustee by the holders of at least 25% in aggregate principal
amount of the ACI
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14% Notes at the time outstanding; (vi) certain events of bankruptcy,
insolvency or reorganization in respect of ACI or any of its restricted
subsidiaries; (vii) (A) a default in payment of the principal of, premium if
any, or interest on any indebtedness for borrowed money of ACI or any
restricted subsidiary in principal amount aggregating $5.0 million or more,
whether such indebtedness now exists or is hereafter created, when the same
shall become due and payable and continuation of such default after any
applicable period of grace or (B) an event of default as defined in any
indenture or instrument evidencing or under which ACI or any restricted
subsidiary has at the date of the indenture of shall thereafter have
outstanding at least $5.0 million aggregate principal amount of indebtedness
for borrowed money shall happen and be continuing and such indebtedness shall
have been accelerated so that the same shall be or become due and payable, and
in any case referred to in the foregoing clause (A) or (B) such non-payment or
acceleration shall not be rescinded or annulled within 10 days after notice of
such default in payment or event of default shall have been given to ACI by the
Trustee (if such event is known to it), or to ACI and the Trustee by the
holders of at least 25% in aggregate principal amount of the ACI 14% Notes at
the time outstanding; (viii) one or more judgments, orders or decrees for the
payment of money (provided that the amount of such money judgment shall be
calculated net of any insurance coverage that the insurer has irrevocably
acknowledged to ACI as covering such money judgment in whole or in part) in
excess of $5.0 million, whether individually or in an aggregate amount, shall
be entered against ACI or any restricted subsidiary of ACI or any of their
respective properties and shall not be discharged and there shall have been a
period of 60 days during which a stay of enforcement of such judgment or order,
by reason of pending appeal or otherwise, shall not be in effect; or (ix) the
holder of any indebtedness of ACI or any restricted subsidiary aggregating at
least $5.0 million in principal amount that is secured by a lien on the
property or assets of ACI or any restricted subsidiary (or any agent of such
holder of such debt or the trustee or other representative then acting under
any indenture or other instrument under which such debt is outstanding) shall
commence any proceeding, or take any action (including by way of set-off) to
retain in satisfaction of such debt or to collect on, seize, dispose of or
apply in satisfaction of such debt, property or assets of ACI or any of its
restricted subsidiaries having a fair market value in excess of $5.0 million
individually or in the aggregate (including funds on deposit or held pursuant
to lock-box or other similar arrangements).
ACI 12 3/4% NOTES
ACI has outstanding $127.5 million in aggregate principal amount of ACI 12
3/4% Notes. The ACI 12 3/4% Notes accrue interest at the rate of 12.75% per
annum, payable semi-annually on January 1 and July 1. The ACI 12 3/4% Notes are
scheduled to mature on July 1, 2007.
ACI, at its option, may redeem the ACI 12 3/4% Notes as a whole, or from time
to time in part, on or after July 1, 2003 at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period beginning July 1 of the years indicated below (in each
case together with accrued and unpaid interest to the redemption date):
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2003........................ 106.375%
2004........................ 104.250%
2005........................ 102.125%
2006 and thereafter......... 100.000%
</TABLE>
In addition, on or prior to July 1, 2001, ACI, at its option, may redeem up
to 35% of the original aggregate principal amount of the ACI 12 3/4% Notes,
with the proceeds of a qualifying equity offering at a redemption price equal
to 112.75% of the principal amount thereof, to the date of redemption provided
that, immediately after giving effect to such redemption, ACI 12 3/4% Notes
with an aggregate principal amount of at least $84,500,000 remain outstanding.
ACI is not, however, obligated to redeem any ACI 12 3/4% Notes with the
proceeds of any equity offering.
The covenants in the indenture under which the ACI 12 3/4% Notes were issued
(the "ACI 12 3/4% Notes Indenture") limit the ability of ACI and its
subsidiaries to pay dividends. Additionally, the ACI 12 3/4% Notes
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Indenture imposes limitations on the incurrence of indebtedness, whether
secured or unsecured, by ACI and its subsidiaries, on the occurrence of liens,
on the disposition of assets, on transactions with affiliates, on the sale or
issuance of stock by the subsidiaries of ACI and on the merger or consolidation
of Arch and its subsidiaries or sale of substantially all of the assets of
Arch.
Upon the occurrence of a "Change of Control", as defined in the ACI 12 3/4%
Notes Indenture, each holder of ACI 12 3/4% Notes has the right to require Arch
to repurchase such holder's ACI 12 3/4% Notes at a repurchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, and Liquidated Damages (as defined therein), if any, to the date of
repurchase. The following constitute a Change of Control under the ACI 12 3/4%
Notes Indenture: (i) the acquisition by a person or group of beneficial
ownership of the majority of the voting power of all classes of voting stock of
ACI or Arch; (ii) the sale or transfer of all or substantially all of the
assets of Arch or ACI or the merger or consolidation of Arch or ACI with or
into another corporation with the effect that the outstanding voting stock of
Arch or ACI is converted into or exchanged for cash, securities or other
property other than certain transactions in which (A) the voting stock of Arch
or ACI is exchanged for or converted into either capital stock of the
transferee or survivor entity or, under limited circumstances, cash, securities
or other property and (B) no person or group shall have become the beneficial
owner of the majority of the securities of the surviving corporation having the
right to vote in the election of directors; (iii) certain changes in the Arch
Board; or (iv) Arch is liquidated or dissolved.
The following constitute "Events of Default" under the ACI 12 3/4% Notes
Indenture: (i) a default in the payment of any installment of interest upon any
of the ACI 12 3/4% Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; (ii) a default in the
payment of all or any part of the principal of, or premium, if any, on any of
the ACI 12 3/4% Notes as and when the same shall become due and payable either
at maturity, upon any redemption or repurchase, by declaration or otherwise;
(iii) the failure of ACI to comply with the covenants limiting mergers and
sales of assets; (iv) the failure of the part of ACI duly to observe or perform
any other of the covenants or agreements on the part of ACI in the ACI 12 3/4%
Notes or in the ACI 12 3/4% Notes Indenture for a period of 60 days after the
date on which written notice specifying such failure shall have been given by
registered or certified mail, return receipt requested, to ACI by the Trustee,
or ACI and the Trustee by the holders of at least 25% in aggregate principal
amount of the Arch Discount Notes at the time outstanding; (vi) (A) a default
in any payment when due at final maturity on any indebtedness for borrowed
money of ACI or any restricted subsidiary in principal amount aggregating $5.0
million or (B) an event of default as defined in any indenture or instrument
evidencing or under which Arch or any restricted subsidiary has outstanding at
least $5.0 million aggregate principal amount of indebtedness for borrowed
money shall happen and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which it would
otherwise become due and payable; (vii) one or more judgments, orders or
decrees for the payment of money in excess of $5.0 million, whether
individually or in an aggregate amount, shall be entered against ACI or any
restricted subsidiary of Arch and shall not be discharged and there shall have
been a period of 60 days during which a stay of enforcement of such judgment or
order, by reason of pending appeal or otherwise, shall not be in effect; (viii)
the holder of any indebtedness of Arch or any restricted subsidiary aggregating
at least $5.0 million in principal amount that is secured by a lien on the
property or assets of ACI or any restricted subsidiary shall notify the Trustee
of the intended sale or disposition of any assets of ACI of any restricted
subsidiary that have been pledged to or for the benefit of such holder or shall
commence any proceeding, or take any action to retain in satisfaction of such
debt or to collect on, seize, dispose of or apply in satisfaction of such debt,
property or assets of Arch or any of its restricted subsidiaries pursuant to
the terms of any agreement or instrument evidencing any such debt of Arch or
any restricted subsidiary or in accordance with applicable law; or (ix) certain
events of bankruptcy, insolvency or reorganization in respect of ACI or any of
its restricted subsidiaries.
ARCH DISCOUNT NOTES
In March 1996, Arch issued $467.4 million in aggregate principal amount at
maturity of Arch Discount Notes. The Arch Discount Notes are scheduled to
mature on March 15, 2008. The Arch Discount Notes were issued at a substantial
discount from the principal amount due at maturity. Interest does not accrue on
the Arch
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Discount Notes prior to March 15, 2001. Thereafter, interest on the Arch
Discount Notes will accrue at the rate of 10 7/8% per annum, payable semi-
annually on March 15 and September 15, commencing September 15, 2001.
Arch, at its option, may redeem the Arch Discount Notes as a whole or from
time to time in part at any time on or after March 15, 2001 at the following
redemption prices (expressed as percentages of principal amount) if redeemed
during the twelve month period beginning on March 15 of the years indicated
below (in each case together with accrued and unpaid interest to the redemption
date):
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2001........................ 104.078%
2002........................ 102.719%
2003........................ 101.359%
2004 and thereafter......... 100.000%
</TABLE>
In addition, on or prior to March 15, 1999, Arch, at its option, may redeem
the Arch Discount Notes, in part, with the proceeds of a qualifying equity
offering at a redemption price equal to 110.875% of the accreted value (as
defined therein) to the date of redemption provided that, immediately after
giving effect to such redemption, Arch Discount Notes with an aggregate
principal amount at maturity at least equal to 66 2/3% of the original
principal amount at maturity of the Arch Discount Notes remain outstanding.
Arch is not, however, obligated to redeem any Arch Discount Notes with the
proceeds of any equity offering.
The covenants in the indenture under which the Arch Discount Notes were
issued (the "Arch Discount Notes Indenture") limit the ability of Arch to pay
dividends to its stockholders. Additionally, the Arch Discount Notes Indenture
imposes limitations on the incurrence of indebtedness, whether secured or
unsecured, by Arch and its subsidiaries, on the disposition of assets, on the
occurrence of liens, on transactions with affiliates, on the sale or issuance
of stock by the subsidiaries of Arch and on the merger or consolidation of Arch
and its subsidiaries or sale of substantially all of the assets of Arch.
Upon the occurrence of a "Change of Control", as defined in the Arch Discount
Notes Indenture, each holder of Arch Discount Notes has the right to require
Arch to repurchase such holder's Arch Discount Notes at a repurchase price in
cash equal to 101% of the accrued principal amount thereof plus accrued and
unpaid interest, if any, to the date of repurchase. The following constitute a
Change of Control under the Arch Discount Notes Indenture: (i) the acquisition
by a person or group of beneficial ownership of the majority of the securities
of Arch having the right to vote in the election of directors; (ii) certain
changes in the Arch Board; (iii) the sale or transfer of all or substantially
all of the assets of Arch or the merger or consolidation of Arch with or into
another corporation with the effect that the outstanding voting stock of Arch
is converted into or exchanged for cash, securities or other property other
than certain transactions in which (i) the voting stock of Arch is exchanged
for or converted into either capital stock of the transferee or survivor entity
or, under limited circumstances, cash, securities or other property and (ii) no
person or group shall have become the beneficial owner of the majority of the
securities of the surviving corporation having the right to vote in the
election of directors.
The following constitute "Events of Default" under the Arch Discount Notes
Indenture: (i) a default in the payment of any installment of interest upon any
of the Arch Discount Notes as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; (ii) a default in the
payment of all or any part of the principal of, or premium, if any, on any of
the Arch Discount Notes as and when the same shall become due and payable
either at maturity, upon any redemption or repurchase, by declaration or
otherwise; (iii) the failure of Arch to comply with the covenants limiting
mergers and sales of assets; (iv) the failure on the part of Arch duly to
observe or perform any other of the covenants or agreements on the part of Arch
in the Arch Discount Notes or in the Arch Discount Notes Indenture for a period
of 60 days after the date on which written notice specifying such failure shall
have been given by registered or certified mail, return receipt requested, to
Arch by the Trustee, or Arch and the Trustee by the holders of at least 25% in
aggregate principal amount of the Arch Discount Notes at the time outstanding;
(v) certain events of bankruptcy, insolvency or reorganization in
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respect of Arch or any of its restricted subsidiaries; (vii) (A) a default in
any payment when due at final maturity on any indebtedness for borrowed money
of Arch or any restricted subsidiary in principal amount aggregating $5.0
million or (B) an event of default as defined in any indenture or instrument
evidencing or under which Arch or any restricted subsidiary has outstanding at
least $5.0 million aggregate principal amount of indebtedness for borrowed
money shall happen and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which it would
otherwise become due and payable; (viii) one or more judgments, orders or
decrees for the payment of money in excess of $5.0 million, whether
individually or in an aggregate amount, shall be entered against Arch or any
restricted subsidiary of Arch and shall not be discharged and there shall have
been a period of 60 days during which a stay of enforcement of such judgment or
order, by reason of pending appeal or otherwise, shall not be in effect; or
(ix) the holder of any indebtedness of Arch or any restricted subsidiary
aggregating at least $5.0 million in principal amount that is secured by a lien
on the property or assets of Arch or any restricted subsidiary shall notify the
Trustee of the intended sale or disposition of any assets of Arch of any
restricted subsidiary that have been pledged to or for the benefit of such
holder or shall commence any proceeding, or take any action to retain in
satisfaction of such debt or to collect on, seize, dispose of or apply in
satisfaction of such debt, property or assets of Arch or any of its restricted
subsidiaries pursuant to the terms of any agreement or instrument evidencing
any such debt of Arch or any restricted subsidiary or in accordance with
applicable law.
ARCH CONVERTIBLE DEBENTURES
Arch has outstanding $13.4 million in principal amount of Arch Convertible
Debentures, the 6 3/4% Convertible Subordinated Debentures due 2003. The Arch
Convertible Debentures accrue interest at the rate of 6.75% per annum, payable
semi-annually on June 1 and December 1. The Arch Convertible Debentures are
scheduled to mature on December 1, 2003. The principal amount of the Arch
Convertible Debentures is convertible into Common Stock at a conversion price
of $16.75 per share at any time prior to redemption or maturity.
The Arch Convertible Debentures may be redeemed at any time at the option of
Arch, in whole or from time to time in part, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period beginning December 1 of the years indicated below (in
each case together with accrued and unpaid interest to the redemption date):
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
1997........................ 104.050%
1998........................ 103.375%
1999........................ 102.700%
2000........................ 102.025%
2001........................ 101.350%
2002........................ 100.675%
2003 and thereafter......... 100.000%
</TABLE>
Upon the occurrence of a "Fundamental Change", as defined in the indenture
under which the Arch Convertible Debentures were issued (the "Arch Debenture
Indenture"), each holder of Arch Convertible Debentures has the right, at the
holder's option, to require Arch to repurchase all of such holder's Arch
Convertible Debentures, or any portion thereof, at a price equal to 100% of the
principal amount of the Arch Convertible Debentures, plus accrued interest to
the repurchase date. The following constitute a Fundamental Change under the
Arch Debenture Indenture: (i) the acquisition by a person or group of
beneficial ownership of capital stock of Arch entitled to exercise more than
50% of the total voting power of all capital stock (unless such beneficial
ownership is approved by the board of directors of Arch prior to such person or
group acquiring such beneficial ownership); (ii) certain changes in the Arch
Board; (iii) a share exchange of Arch with, or the merger of Arch into, any
other person, any merger of another person into Arch, or any sale or transfer
of all or substantially all of the assets of Arch to another person (subject in
each case to certain exceptions); (iv) the purchase by Arch of beneficial
ownership in shares of its Common Stock if such purchase would result in a
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default under any senior debt agreements to which Arch is a party; or (v)
certain distributions by Arch of Arch Common Stock.
The Arch Convertible Debentures represent senior unsecured obligations of
Arch and are subordinated to "Senior Indebtedness" of Arch, as defined in the
Arch Debenture Indenture. The Arch Debenture Indenture does not contain any
limitation or restriction on the incurrence of Senior Indebtedness or other
indebtedness or securities of Arch or its subsidiaries.
The following constitute "Events of Default" under the Arch Debenture
Indenture: (i) a default in the payment of any interest on the Arch Convertible
Debentures that continues for 30 days after the date when due; (ii) a default
in the payment of principal of or premium, if any, on any Arch Convertible
Debenture when due and payable, whether at maturity, upon redemption or
otherwise; (iii) a default in the performance of any other covenant or
agreement of Arch that continues for 30 days after written notice of such
default, requiring Arch to remedy the same; (iv) a default under any
indebtedness for money borrowed by Arch, which default results in such
indebtedness in an amount exceeding $5.0 million becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, if such indebtedness is not discharged, or such acceleration is not
annulled, within 30 days after written notice of such default, requiring Arch
to remedy the same; or (v) the occurrence of certain events of bankruptcy,
insolvency or reorganization with respect to Arch.
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ITEM 2 -- CHARTER AMENDMENT PROPOSAL
At the Special Meeting, Arch stockholders will consider and vote upon a
proposal to amend the Arch Certificate (the "Charter Amendment") to (i)
increase the number of authorized shares of Arch Common Stock from 75,000,000
to 365,000,000 shares, (ii) designate 65,000,000 of such additional shares as
"Class B Common Stock" and (iii) increase the number of authorized shares of
Series B Junior Participating Preferred Stock of Arch from 200,000 to 300,000
shares. The complete text of the Charter Amendment is set forth in Annex D to
this Proxy Statement/Prospectus.
Arch currently is authorized to issue 75,000,000 shares of Arch Common Stock
and 10,000,000 shares of Preferred Stock. As of September 30, 1998, there were
21,067,110 shares of Arch Common Stock outstanding, 2,740,381 shares of Arch
Common Stock reserved for issuance under stock and option plans of Arch and
4,639,103 shares reserved for issuance upon conversion of the 250,000 shares of
Series C Preferred Stock outstanding. In excess of 160,000,000 shares of Arch
Common Stock may be issuable in connection with the Merger and the Amended Plan
(including shares issuable upon exercise of the Arch Rights and the Arch
Participation Warrants). Therefore, the amendment to the Arch Certificate is
required to authorize sufficient capital stock to effectuate the Merger and the
Amended Plan and to have a sufficient number of authorized but unissued shares
of Arch Common Stock available for future issuance.
The additional shares of Arch Common Stock to be authorized would be
available for possible future financing and acquisition transactions, stock
dividends or splits and other corporate purposes. Having such shares available
for issuance in the future would give Arch greater flexibility and allow shares
of Arch Common Stock to be issued without the expense and delay of a
stockholders' meeting. The additional shares of Arch Common Stock would be
available for issuance without further action by the stockholders except as
required by applicable law or the rules of any stock exchange on which Arch
securities may be listed. The NNM, on which the Arch Common Stock is quoted,
currently requires stockholder approval for the issuance of additional shares
in certain instances, including in connection with acquisition transactions
where the issuance of shares could result in an increase in the number of
shares of Common Stock outstanding by 20% or more.
The holders of Arch Common Stock do not have preemptive rights under the Arch
Certificate and will not have such rights with respect to the additional
authorized shares of Arch Common Stock. Holders of Series C Preferred Stock do
have certain preemptive rights under the Arch Certificate.
At the present time, Arch has no plans to issue shares of Arch Common Stock
for which authorization is being sought other than as contemplated by the
Merger Agreement, the Amended Plan and under Arch's existing stock and option
plans (and contemplated amendments thereto in connection with the Merger).
ARCH BOARD RECOMMENDATION
The Arch Board believes that the Charter Amendment Proposal is in the best
interests of Arch and its stockholders and therefore unanimously recommends a
vote FOR this proposal.
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ITEM 3 -- APPROVAL OF STOCK SPLIT PROPOSAL
At the Special Meeting, Arch stockholders will consider and vote upon a
proposal to amend the Arch Certificate (the "Stock Split Amendment") to effect
a reverse split of Arch Common Stock, pursuant to which outstanding shares of
Arch Common Stock will be automatically converted into a smaller number of
shares of Arch Common Stock without any action on the part of any stockholder
(the "Reverse Split") in accordance with the following formula. In the Reverse
Split, each x outstanding shares of Arch Common Stock will be automatically
converted into one share of Arch Common Stock, where x (hereinafter referred
to as the "Split Factor") equals the whole number obtained by dividing $6.00
by the Market Price (as hereinafter defined) and rounding the result up to the
nearest whole number. For this purpose, "Market Price" will equal the average
last reported sale price per share of the Arch Common Stock on the NNM (or
such other exchange or market on which the Arch Common Stock in then traded)
for the ten (10) trading days immediately preceding the date of filing the
Stock Split Amendment with the Secretary of State of the State of Delaware.
Based on the last reported sale price per share of the Arch Common Stock on
the NNM for the ten (10) trading days between November 30, 1998 and
December 14, 1998, the Split Factor would be five. The complete text of the
Stock Split Amendment is set forth in Annex E to this Proxy
Statement/Prospectus.
The Reverse Split will become effective as of 5:00 p.m., local time, on the
date (the "Split Date") that the Stock Split Amendment is filed with the
Secretary of State of the State of Delaware. If for any reason the Arch Board
deems it advisable, the Stock Split Amendment may be abandoned at any time
before the Split Date, whether before or after the Special Meeting (even if
the Stock Split Amendment has been approved by the stockholders of Arch). The
Arch Board does not intend to effect the Reverse Split until the earlier of
the consummation of the Merger or June 30, 1999 (or earlier if required for
the continued listing of the Arch Common Stock on the NNM), and in any event
the Arch Board does not intend to effect the Reverse Split unless it believes
the Reverse Split is necessary for the continued listing of the Arch Common
Stock on the NNM. See "--Purpose of the Reverse Split".
In lieu of issuing less than one whole share of Arch Common Stock resulting
from the Reverse Split to holders of Arch Common Stock, Arch will determine
the fair value of each outstanding share of Arch Common Stock held on the
Split Date (the "Fractional Share Value"). Arch currently anticipates that the
Fractional Share Value will be based on the average last reported sale price
per share of the Arch Common Stock on the NNM for the ten (10) trading days
immediately preceding the Split Date. In the event Arch determines that
unusual trading activity has caused such amount to be an inappropriate measure
of the fair value of the Arch Common Stock, Arch may base the Fractional Share
Value on the fair market value of the Arch Common Stock as reasonably
determined in good faith by the Arch Board. Stockholders will be entitled to
receive, in lieu of fractional shares, cash equal to the Fractional Share
Value.
As soon as practical after the Split Date, Arch will mail a letter of
transmittal to each holder of record of a stock certificate or certificates
which represent issued Arch Common Stock outstanding on the Split Date. The
letter of transmittal will contain instructions for the surrender of such
certificate or certificates to Arch's designated exchange agent in exchange
for certificates representing the number of whole shares of Arch Common Stock
(plus any applicable cash portion of the Fractional Share Value) into which
the shares of Arch Common Stock have been converted as a result of the Reverse
Split. No cash payment will be made or new certificate issued to a stockholder
until he or she has surrendered his or her outstanding certificates together
with the letter of transmittal to Arch's exchange agent. See "--Exchange of
Stock Certificates".
PURPOSE OF THE REVERSE SPLIT
Shares of Arch Common Stock have been listed, and have traded, on the NNM
since January 17, 1992. Arch has received a notice from the NNM indicating
that unless Arch comes in compliance with the continued listing requirements
of the NNM, Arch Common Stock will be delisted from the NNM. Arch has
requested a hearing from the NNM at which it intends to seek the continued
listing of the Arch Common Stock on the NNM based, in part, on the proposed
Reverse Split.
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The rules of the NNM require that as a condition of the continued listing of
a company's securities on the NNM, a company must satisfy at least one of
several alternative maintenance requirements, which generally require that a
company meet certain minimum criteria relating to specified financial
parameters and the trading price for its listed securities. Under one such
maintenance requirement, the minimum bid price of Arch Common Stock must equal
or exceed $5.00, among other criteria. The closing price of Arch Common Stock
on December 14, 1998 was $1.5625 per share.
Arch believes that if the Reverse Split is approved by the stockholders at
the Special Meeting, and the Reverse Split is effectuated, a share of Arch
Common Stock will have a minimum bid price in excess of $5.00 per share, and
therefore will satisfy one of the criteria of the above-mentioned NNM
maintenance requirement. Arch would also need to continue to satisfy other
criteria to continue to have the Arch Common Stock eligible for continued
listing and trading on the NNM. These other criteria consist of maintaining
(i) total revenues and assets of at least $50.0 million each, (ii) a public
float (defined as shares not held directly or indirectly by any officer,
director or 10% stockholder) of at least 1.1 million shares, (iii) a market
value of the public float of at least $15.0 million, (iv) at least 400
stockholders (round lot holders), (v) at least four market makers and (vi)
compliance with certain corporate governance requirements. Arch believes that
it satisfies all of these other maintenance criteria, however, the market
value of its public float as of December 14, 1998 was approximately $21.3
million. There can be no assurance that Arch will be able to maintain a market
value of its public float of at least $15.0 million or that Arch will be
successful in continuing to meet the other maintenance criteria even if the
Reverse Split is effected.
If the Reverse Split is not approved by the stockholders at the Special
Meeting, then it is highly likely that Arch Common Stock will cease to be
approved for quotation on the NNM, which is a condition to the parties
obligation to consummate the transactions under the Merger Agreement and which
could also adversely affect the liquidity of Arch Common Stock and the ability
of Arch to raise capital. In such event, Arch intends to make application for
listing on the Nasdaq Small Cap Market. If not approved for listing on the
Nasdaq Small Cap Market, Arch Common Stock will likely be quoted in the "pink
sheets" maintained by the National Quotation Bureau, Inc. or the NASD
Electronic Bulletin Board and the spread between the bid and ask price of Arch
Common Stock is likely to be greater than at present and stockholders may
experience a greater degree of difficulty in effecting trades of Arch Common
Stock.
In addition, the Arch Board further believes that low trading prices of Arch
Common Stock may have an adverse impact upon the efficient operation of the
trading market in its securities. In particular, brokerage firms often charge
a greater percentage commission on low-priced shares than that which would be
charged on a transaction in the same dollar amount of securities with a higher
per share price. Large brokerage firms will frequently not recommend purchases
of low-priced shares to their clients or make a market in such shares, which
tendencies may adversely affect the trading prices of Arch Common Stock.
Stockholders should note that the effect of the Reverse Split upon the
trading prices for Arch Common Stock cannot be accurately predicted. In
particular, there can be no assurance that trading prices for Arch Common
Stock after the Reverse Split will equal the prices for Arch Common Stock
immediately prior to the Reverse Split multiplied by the Split Factor.
Furthermore, there can be no assurance that the proposed Reverse Split will
achieve the desired results which have been outlined above, nor can there be
any assurance that the Reverse Split will not adversely impact the trading
price of Arch Common Stock or, alternatively, that any increased price per
share of Arch Common Stock immediately after the proposed Reverse Split will
be sustained for any prolonged period of time. In addition, the Reverse Split
may have the effect of creating odd lots of stock for some stockholders and
such odd lots may be more difficult to sell or have higher brokerage
commissions associated with the sale of such odd lots.
EFFECT OF THE REVERSE SPLIT
As a result of the Reverse Split, the number of shares of Arch Common Stock
held by stockholders of record as of the close of business on the Split Date
will automatically, without any action required by the stockholders, be equal
to the number of shares of Arch Common Stock held immediately prior to the
close of business on the
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Split Date divided by the Split Factor, plus cash in lieu of any fractional
share. The Reverse Split will not affect a stockholder's percentage ownership
interest in Arch or proportional voting power, except for immaterial
differences resulting from the payment of cash in lieu of fractional shares.
The rights and privileges of the holders of shares of Arch Common Stock will be
unaffected by the Reverse Split. The par value of the Arch Common Stock
following the Split Date will be $.01 multiplied by the Split Factor, and the
number of outstanding shares of Arch Common Stock will be reduced.
Consequently, the aggregate par value of the outstanding Arch Common Stock will
remain the same.
After giving effect to the Charter Amendment Proposal, there will be
365,000,000 authorized shares of Arch Common Stock, of which 65,000,000 shares
will be designated as Class B Common Stock. If the Reverse Split is approved
and implemented, the number of authorized shares of Arch Common Stock will be
reduced from 365,000,000 to 75,000,000, of which 15,000,000 shares will be
designated as Class B Common Stock. However, since the number of outstanding
shares will be reduced by the Split Factor, the Reverse Split will, in effect,
increase the number of authorized but unissued shares of Arch Common Stock. For
example, if the Split Factor is five, the number of outstanding shares will be
reduced by a factor of five, but the number of authorized shares of Arch Common
Stock will be reduced only by a factor of 4.87 (i.e., 365,000,000 divided by
75,000,000). The subsequent issuance of the additional authorized shares may
have the effect of diluting per-share measurements, of value (such as EBITDA),
as well as the stock ownership and voting rights, of outstanding Arch Common
Stock. As the Reverse Split will, in effect, increase the number of authorized
but unissued shares of Arch Common Stock, it may be construed as having an
anti-takeover effect by permitting the issuance of shares to purchasers who
might oppose a hostile takeover bid or oppose any efforts to amend or repeal
certain provisions of the Arch Certificate or By-laws.
If the Stock Split Proposal is approved, Arch stockholders will have no right
under Delaware law or under the Arch Certificate or By-laws to dissent or seek
appraisal rights from the Reverse Split.
Arch Common Stock is currently registered under Section 12(g) of the Exchange
Act and, as a result, Arch is subject to the periodic reporting and other
requirements of the Exchange Act. The Reverse Split will not affect the
registration of Arch Common Stock under the Exchange Act, and Arch has no
current intention of terminating its registration under the Exchange Act.
Upon consummation of the Reverse Split, the total number of shares currently
reserved for issuance under Arch's stock and option plans would be decreased
proportionately and the cash consideration payable per share thereunder would
be increased proportionately. Upon consummation of the Reverse Split, the
number of shares issuable upon conversion of all then outstanding convertible
securities of Arch would be decreased proportionately.
EXCHANGE OF STOCK CERTIFICATES
As soon as practicable after the Split Date, Arch intends to require
stockholders to exchange their existing stock certificates ("Old Certificates")
for new certificates ("New Certificates") representing the number of whole
shares of Arch Common Stock into which their shares of Arch Common Stock have
been converted as a result of the Reverse Split (as well as cash in lieu of
fractional shares resulting from the Reverse Split). Stockholders will be
furnished with the necessary materials and instructions for the surrender and
exchange of stock certificates at the appropriate time by Arch's transfer
agent. Stockholders will not be required to pay a transfer or other fee in
connection with the exchange of certificates. STOCKHOLDERS SHOULD NOT SUBMIT
ANY CERTIFICATES TO THE TRANSFER AGENT UNTIL REQUESTED TO DO SO.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE REVERSE SPLIT
The following discussion addresses the material United States federal income
tax considerations relating to the Reverse Split that are applicable to
stockholders. Arch has not sought and will not seek an opinion of counsel or a
ruling from the IRS regarding the federal income tax consequences of the
Reverse Split.
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The following discussion is based on the Tax Code, applicable Treasury
Regulations, judicial authority and administrative rulings and practice, all as
of the date hereof. The IRS is not precluded from adopting a contrary position.
In addition, there can be no assurance that future legislative, judicial or
administrative changes or interpretations will not adversely affect the
accuracy of the information set forth therein. Any such changes or
interpretations could be applied retroactively and could affect the tax
consequences of the Reverse Split to Arch and its stockholders.
Arch stockholders should be aware that the following discussion is for
general information only and does not deal with all federal income tax
considerations that may be relevant to particular taxpayers in light of their
particular circumstances or to taxpayers subject to special treatment under the
federal income tax laws (including foreign persons, banks and other financial
institutions, tax exempt entities, broker-dealers, or insurance companies), and
does not address any aspect of foreign, state or local taxation, or federal
estate or gift taxation. ACCORDINGLY, ARCH STOCKHOLDERS ARE URGED TO CONSULT
THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE
REVERSE SPLIT, INCLUDING APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES TO THEM.
In general, the federal income tax consequences of the Reverse Split will
vary among stockholders depending upon whether they receive the Fractional
Value or solely a whole number of shares of Arch Common Stock in the Reverse
Split. Arch believes that because the Reverse Split is not part of a plan to
increase periodically a stockholder's proportionate interest in Arch's assets
or earnings and profits, the Reverse Split will likely have the following
federal income tax effects:
1. A stockholder who receives solely a whole number of shares of Arch
Common Stock in the Reverse Split will not recognize gain or loss on the
exchange. In the aggregate, the stockholder's basis in the Arch Common
Stock received in the Reverse Split will equal the holder's basis in the
Arch Common Stock held prior to the Reverse Split.
2. A stockholder who receives a portion of the Fractional Share Value as
a result of the Reverse Split will generally be treated as having received
the payment as a distribution in redemption of such fractional share, as
provided in (S)302(a) of the Tax Code. Each affected stockholder should
consult such stockholder's own tax advisor for the tax effect of such
redemption (i.e., exchange or dividend treatment) in light of such
stockholder's particular facts and circumstances.
3. The Reverse Split will constitute a reorganization within the meaning
of (S)368(a)(1)(E) of the Tax Code, and Arch will not recognize any gain or
loss as a result of the Reverse Split.
ARCH BOARD RECOMMENDATION
The Arch Board believes the Stock Split Proposal is in the best interests of
Arch and its stockholders and unanimously recommends that stockholders vote FOR
this proposal.
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ITEM 4 -- APPROVAL OF AN AMENDMENT TO ARCH'S 1997 STOCK OPTION PLAN
The Arch Board believes that the future growth and success of Arch depends,
in large part, on its ability to attract, retain and motivate key employees,
consultants and advisors and that stock option grants under Arch's 1997 Stock
Option Plan (the "1997 Option Plan") have provided and will continue to provide
an important compensation element in attracting, retaining and motivating such
persons. In connection with the consummation of the Merger, the number of
employees of Arch will increase from approximately 2,800 to approximately
5,900. In order to have a sufficient number of shares of Common Stock available
for future issuance under the 1997 Stock Option Plan, the Board of Directors of
Arch has adopted, subject to stockholder approval, an amendment to the 1997
Option Plan that increased the number of shares of Common Stock available for
issuance under such Plan from 1,500,000 to 6,000,000. The Board of Directors of
Arch believes that the amendment to the 1997 Option Plan is in the best
interests of Arch and its stockholders and recommends that the stockholders
vote FOR this proposal. The following is a summary of the 1997 Option Plan.
SUMMARY OF THE PLAN
The 1997 Option Plan provides for the granting of incentive stock options
(within the meaning of the Tax Code) to Arch's employees (including officers)
and for the granting of non-statutory stock options to Arch's employees,
officers, directors, consultants and advisors. The 1997 Option Plan, as
amended, authorizes the issuance of up to an aggregate of 6,000,000 shares of
Common Stock, and no employee may be granted options for more than 500,000
shares in any calendar year. No options may be granted under the 1997 Option
Plan with an exercise price below the fair market value of the Common Stock on
the date of grant. No options may be granted under the 1997 Option Plan after
February 10, 2007, but options previously granted may extend beyond that date.
The 1997 Option Plan is administered by the Arch Board. The Arch Board has
the authority to select the optionees and determine (i) the number of shares
subject to each option, (ii) when the option becomes exercisable (generally at
the rate of 20% of the shares subject to the option on the first anniversary of
the date of grant and 5% of the shares subject to the option per calendar
quarter thereafter), (iii) the exercise price, which cannot be less than 100%
of the fair market value of Arch Common Stock on the date of grant, and (iv)
the duration of the option, which cannot exceed ten years in the case of
incentive stock options. The Arch Board may amend, modify or terminate any
outstanding option under the 1997 Option Plan, subject to the consent of the
option holder if such action materially and adversely affects the option
holder. The Arch Board may delegate its authority under the 1997 Option Plan to
one or more committees of the Arch Board or, subject to certain limitations, to
one or more executive officers.
The 1997 Option Plan provides that all options granted thereunder will become
immediately exercisable upon the occurrence of any of the following events: (i)
any merger or consolidation which results in the voting securities of Arch
outstanding immediately prior thereto continuing to represent less than 50% of
the combined voting power of the voting securities of Arch or such surviving or
acquiring entity outstanding immediately after such merger or consolidation;
(ii) any sale of all or substantially all of the assets of Arch; (iii) the
complete liquidation of Arch; or (iv) with certain exceptions, the acquisition
of "beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act) of
securities of Arch representing 50% or more of the combined voting power of
Arch's then outstanding securities by any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act).
Options may be granted under the 1997 Option Plan in substitution for options
and other stock based awards held by employees of another corporation who
become employees of Arch as a result of a merger or consolidation of the
employing corporation with Arch or the acquisition by Arch of property or stock
of the employing corporation. The substitute options shall be granted on such
terms and conditions as the Board considers appropriate in the circumstances.
Except as otherwise provided with respect to an option, options granted under
the 1997 Option Plan are not transferable by the option holder except by will
or the laws of descent and distribution. Vested options are
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generally exercisable during the lifetime of the optionee only by such
optionee while such optionee is employed by Arch or within three months
following termination of employment. In the event that termination is due to
death or disability, or if death occurs within 90 days after termination, the
vested option is exercisable for a maximum of one year thereafter.
As of September 30, 1998, all Arch employees were eligible for option grants
under the 1997 Option Plan, including the Named Executive Officers. As of
September 30, 1998, options for 1,117,227 shares were outstanding under the
1997 Option Plan at exercise prices ranging from $3.5625 to $6.8750 per share,
including (i) options to purchase 239,636, 140,000, 90,000, 15,905, and 16,887
shares held by Messrs. Baker, Daniels, Pottle, Saynor and Kuzia, respectively,
(ii) options to purchase 502,428 shares held by all current executive officers
as a group and (iii) options to purchase 614,799 shares held by all employees
(including current officers who are not executive officers) as a group. As of
September 30, 1998, no options had been exercised under the 1997 Option Plan.
The granting of options is discretionary, and Arch cannot now determine the
number of additional options to be granted to any particular Named Executive
Officers or to all Named Executive Officers as a group under the 1997 Option
Plan.
On December 14, 1998, the closing sale price of Arch Common Stock on the NNM
was $1.5625 per share.
FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the material United States federal income tax
consequences that generally will arise with respect to stock options granted
under the Plan and with respect to the sale of Common Stock acquired under the
Plan. It does not address the tax consequences that may arise with respect to
any gift or disposition other than by sale of Common Stock acquired under the
Plan. For precise advice as to any specific transaction or set of
circumstances, participants should consult with their own tax advisors.
Participants should be aware that the following discussion is intended for
general information only and does not deal with all federal income tax
considerations that may be relevant to particular taxpayers in light of their
particular circumstances. Accordingly, participants should consult with their
own tax advisors regarding the application of any state, local, and foreign
taxes and any federal gift, estate, and inheritance taxes. The Plan is not a
qualified plan under Section 401(a) of the Tax Code.
INCENTIVE STOCK OPTIONS
In general, a participant will not recognize taxable income upon the grant
or exercise of an incentive stock option. Instead, a participant will
recognize taxable income with respect to an incentive stock option only upon
the sale of Common Stock acquired through the exercise of the option ("ISO
Stock"). Nevertheless, in the case of a participant who has not been an
employee of Arch at all times commencing on the date on which a particular
option was granted (the "Grant Date") and ending on the date that is three
months before the date on which the option is exercised (the "Exercise Date"),
an option generally will be treated as though it were a non-statutory option
and taxed as described below under "Non-Statutory Options". Similarly, options
will be treated as non-statutory options for purposes of the alternative
minimum tax. While a participant will pay alternative minimum tax only to the
extent of the excess of that tax over the participant's regular tax, the
treatment of an option as a non-statutory option for purposes of the
alternative minimum tax could create such an excess.
Generally, the tax consequences of selling ISO Stock will vary with the
length of time that the participant has owned the ISO Stock at the time it is
sold. If the participant sells ISO Stock after having owned it for at least
two years from the Grant Date and one year from the Exercise Date, then the
participant will recognize long-term capital gain in an amount equal to the
excess of the sale price of the ISO Stock over the exercise price.
If the participant sells ISO Stock prior to having owned it for at least two
years from the Grant Date and one year from the Exercise Date (a
"Disqualifying Disposition"), then the participant generally will recognize
ordinary compensation income in an amount equal to the lesser of:
(i) the excess of the fair market value of the ISO Stock on the Exercise
Date over the exercise price; and
(ii) the excess of the sale price of the ISO Stock over the exercise
price.
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A participant making a Disqualifying Disposition will also recognize capital
gain in an amount equal to any excess of the sale price of the ISO Stock over
the fair market value of the ISO Stock on the Exercise Date. This capital gain
will be a long-term capital gain if the participant has held the ISO Stock for
more than one year prior to the date of the sale and will be a short-term
capital gain if the participant has held the ISO Stock for a shorter period.
If a participant sells ISO Stock for less than the exercise price, then the
participant will recognize capital loss equal to the excess of the exercise
price over the sale price of the ISO Stock. This capital loss will be a long-
term capital loss if the participant has held the ISO Stock for more than one
year prior to the date of the sale and will be a short-term capital loss if the
participant has held the ISO Stock for a shorter period.
NON-STATUTORY OPTIONS
As in the case of an incentive stock option, a participant will not recognize
taxable income upon the grant of a non-statutory option. However, a participant
generally will recognize ordinary compensation income upon the exercise of a
non-statutory option in an amount equal to the excess of the fair market value
of the Common Stock acquired through the exercise of the option (the "NSO
Stock") on the Exercise Date over the exercise price.
A participant will have a tax basis for any NSO Stock equal to the exercise
price plus any income recognized upon the exercise of the option. Upon selling
NSO Stock, a participant generally will recognize capital gain or loss in an
amount equal to the difference between the sale price of the NSO Stock and the
participant's tax basis in the NSO Stock. This capital gain or loss will be a
long-term capital gain or loss if the participant has held the NSO Stock for
more than one year prior to the date of the sale and will be a short-term
capital gain or loss if the participant has held the NSO Stock for a shorter
period.
DELIVERY OF COMMON STOCK UPON EXERCISE OF STOCK OPTIONS
Under certain circumstances, the Plan permits a participant to exercise a
stock option by delivering to Arch Common Stock having a fair market value
equal in amount to the exercise price. The use of this method of exercise
generally will not alter the tax consequences described above, and it may
enable a participant to dispose of appreciated Common Stock without immediately
recognizing capital gain on the disposition. The participant's tax basis in any
shares of Common Stock delivered to Arch to exercise an option generally will
be carried over to an equal number of shares of Common Stock acquired upon
exercising the option. Nevertheless, participants should consider that the
delivery to Arch of ISO Stock or stock acquired pursuant to Arch's employee
stock purchase plan will constitute a Disqualifying Disposition, having all of
the adverse tax consequences described above, if the holding period
requirements described above are not satisfied with respect to that stock.
MAXIMUM INCOME TAX RATES ON CAPITAL GAIN AND ORDINARY INCOME
Long-term capital gain will be taxable at a maximum rate of 20%. Short-term
capital gain and ordinary income will be taxable at a maximum rate of 39.6%.
Phaseouts of personal exemptions and reductions of allowable itemized
deductions at higher levels of income may result in slightly higher marginal
tax rates. Ordinary compensation income will also be subject to a medicare tax
and, under certain circumstances, a social security tax.
TAX CONSEQUENCES TO ARCH
The grant of a stock option under the Plan will have no tax consequences to
Arch. Moreover, in general, neither the exercise of an incentive stock option
acquired under the 1997 Option Plan nor the sale of any Common Stock acquired
under the 1997 Option Plan will have any tax consequences to Arch. However,
Arch generally will be entitled to a business-expense deduction with respect to
any ordinary compensation income recognized by a participant under the 1997
Option Plan. Any such deduction will be subject to the limitations of Section
162(m) of the Tax Code.
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WITHHOLDING
Although a participant's Disqualifying Disposition of ISO Stock will result
in the recognition of ordinary compensation income, Arch will have no
withholding obligation with respect to that income. In contrast, Arch will have
a withholding obligation with respect to ordinary compensation income
recognized with respect to a non-statutory option by a participant who has been
employed by Arch. Arch will require any such participant to make arrangements
to satisfy this withholding obligation.
ARCH BOARD RECOMMENDATION
The Arch Board believes that the amendment to the 1997 Option Plan is in the
best interests of Arch and its stockholders and therefore recommends that the
stockholders vote FOR this proposal.
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ITEM 5--APPROVAL OF 1999 EMPLOYEE STOCK PURCHASE PLAN
The Arch Board believes that the future growth and success of Arch depends,
in large part, upon the ability of Arch to maintain a competitive position in
attracting and retaining key personnel. Accordingly, the Arch Board has
adopted, subject to stockholder approval, Arch's 1999 Employee Stock Purchase
Plan (the "1999 Purchase Plan"). The Arch Board believes that the approval of
the 1999 Purchase Plan is in the best interests of Arch and its stockholders
and recommends that the stockholders vote FOR this proposal. The following is
a summary of the 1999 Purchase Plan.
SUMMARY OF THE PLAN
The 1999 Purchase Plan authorizes the issuance of up to an aggregate of
1,500,000 shares of Arch Common Stock to participating employees
("Participants"). The 1999 Purchase Plan is administered by the Executive
Compensation Committee of the Arch Board (the "Compensation Committee"), which
is authorized to make rules and regulations for the administration and
interpretation of the 1999 Purchase Plan. Employees (including executive
officers) who have completed three months of employment with Arch (or any
eligible subsidiary of Arch) and who are regularly employed by Arch prior to
the applicable offering commencement date generally are eligible to
participate in the 1999 Purchase Plan. As of December 4, 1998, Arch had
approximately 2,500 eligible employees.
On the first day of a designated payroll deduction period (the "Offering
Period"), Arch grants to each eligible Participant an option to purchase
Common Stock under the 1999 Purchase Plan. No employee may be granted an
option under the 1999 Purchase Plan which permits his rights to purchase stock
under all employee stock purchase plans of Arch and any eligible subsidiary of
Arch to accrue at a rate which exceeds $25,000 of the fair market value of
such stock (determined at the time such option is granted at the commencement
of an Offering Period (the "Offering Commencement Date")) for each calendar
year in which such option is outstanding at any time. A Participant may elect
to have up to 10% deducted from his or her regular salary for this purpose.
The price at which a Participant's option is exercised is the lower of (i) 85%
of the last sales price of the Arch Common Stock on the Nasdaq National Market
(the "last sales price") on the Offering Commencement Date or (ii) 85% of the
last sales price on the day that the Offering Period terminates.
Assuming the 1999 Purchase Plan is approved by stockholders, Arch expects
the first Offering Period under the 1999 Purchase Plan to commence either (i)
promptly after the Special Meeting and run through June 30, 1999 or (ii) July
1, 1999 and run through December 31, 1999. Subsequent Offering Period under
the 1999 Purchase Plan will commence on January 1 and July 1 and terminate,
respectively, on June 30 and December 31. The market value of the total number
of shares which may be issued under the 1999 Purchase Plan is $2,343,750,
based upon the last sales price of Arch Common Stock as reported on the NNM on
December 14, 1998.
In the event of a "continuity of control" merger or consolidation (a merger
or consolidation whereby the holders of capital stock of Arch immediately
prior to such merger or consolidation continue to hold at least 80% of the
voting power of the capital stock of the surviving corporation) with another
corporation, each Participant holding an outstanding purchase option will be
entitled to receive, at the end of the Offering Period, the equivalent number
of securities or property which holders of Arch Common Stock were entitled to
receive upon consummation of such merger or consolidation. In the event of a
non-continuity of control merger or a sale of all or substantially all of the
assets of Arch, the Compensation Committee may (i) terminate all outstanding
purchase options and refund all payroll deductions, (ii) provide notice to all
Participants and allow them to exercise their purchase option prior to the
effective date of such transaction, or (iii) provide that Participants shall
receive such stock or securities as holders of shares of Arch Common Stock
received pursuant to the terms of the transaction.
The Arch Board may at any time terminate or amend the 1999 Purchase Plan.
However, if stockholder approval of an amendment is required by Section 423 of
the Tax Code, such amendment may not be effected without such stockholder
approval. The 1999 Purchase Plan requires that all amounts in the accounts of
Participants be promptly refunded upon termination of the 1999 Purchase Plan.
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FEDERAL INCOME TAX CONSEQUENCES
The 1999 Purchase Plan is intended to qualify as an "employee stock purchase
plan" as defined in Section 423 of the Tax Code. The following is a summary of
the United States federal income tax consequences that generally will arise
with respect to the sale of Arch Common Stock under the 1999 Purchase Plan.
TAX CONSEQUENCES TO PARTICIPANTS
In general, a Participant will not recognize taxable income upon enrolling in
the 1999 Purchase Plan or upon purchasing shares of Arch Common Stock at the
end of an Offering Period. Instead, if a Participant sells Arch Common Stock
acquired under the 1999 Purchase Plan at a sale price that exceeds the price at
which the Participant purchased the Arch Common Stock, then the Participant
will recognize taxable income in an amount equal to the excess of the sale
price of the Arch Common Stock over the price at which the Participant
purchased the Arch Common Stock. A portion of that taxable income will be
ordinary income, and a portion may be capital gain.
If the Participant sells the Arch Common Stock more than one year after
acquiring it and more than two years after the Offering Commencement Date, then
the Participant will be taxed as follows. If the sale price of the Arch Common
Stock is higher than the price at which the Participant purchased the Arch
Common Stock, then the Participant will recognize ordinary compensation income
in an amount equal to the lesser of: (i) 15% of the fair market value of the
Arch Common Stock on the Offering Commencement Date; and (ii) the excess of the
sale price of the Arch Common Stock over the price at which the Participant
purchased the Arch Common Stock. Any further income will be long-term capital
gain. If the sale price of the Arch Common Stock is less than the price at
which the Participant purchased the capital stock, then the Participant will
recognize long-term capital loss in an amount equal to the excess of the price
at which the Participant purchased the Arch Common Stock over the sale price of
the Arch Common Stock.
If the Participant sells the Arch Common Stock within one year after
acquiring it or within two years after the Offering Commencement Date (a
"Disqualifying Sale"), then the Participant will recognize ordinary
compensation income in an amount equal to the excess of the fair market value
of the Arch Common Stock on the date that it was purchased over the price at
which the Participant purchased the Arch Common Stock. The Participant will
also recognize capital gain in an amount equal to the excess of the sale price
of the Arch Common Stock over the fair market value of the Arch Common Stock on
the date that it was purchased, or capital loss in an amount equal to the
excess of the fair market value of the Arch Common Stock on the date that it
was purchased over the sale price of the Arch Common Stock. This capital gain
or loss will be a long-term capital gain or loss if the Participant has held
the Arch Common Stock for more than one year prior to the date of the sale and
will be a short-term capital gain or loss if the Participant has held the Arch
Common Stock for a shorter period.
TAX CONSEQUENCES TO ARCH
The offering of Arch Common Stock under the 1999 Purchase Plan will have no
tax consequences to Arch. Moreover, in general, neither the purchase nor the
sale of Arch Common Stock acquired under the 1999 Purchase Plan will have any
tax consequences to Arch except that Arch will be entitled to a business-
expense deduction with respect to any ordinary compensation income recognized
by a Participant upon making a Disqualifying Sale. Any such deduction will be
subject to the limitations of Section 162(m) of the Code.
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LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for Arch by
Hale and Dorr LLP, 60 State Street, Boston, Massachusetts.
EXPERTS
The financial statements of Arch included in this Proxy Statement have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are included herein in reliance upon
the authority of said firm as experts in accounting and auditing in giving said
reports. A representative of Arthur Andersen LLP is expected to be at the
Special Meeting to answer appropriate questions by stockholders and will have
the opportunity to make a statement if so desired.
The consolidated financial statements of MobileMedia at December 31, 1997 and
1996, and for each of the three years in the period ended December 31, 1997,
appearing in this Proxy Statement have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon (which contains an
explanatory paragraph describing conditions that raise substantial doubt about
MobileMedia's ability to continue as a going concern as described in Note 1 of
MobileMedia's Notes to Consolidated Financial Statements) appearing elsewhere
herein, and are included in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
With the exception of matters unique to MobileMedia, the descriptions of the
regulatory requirements under the Communications Act and the regulations
thereunder set forth under "Risk Factors--Risks Common to Arch and
MobileMedia--Government Regulation, Foreign Ownership and Possible Redemption"
and "Industry Overview--Regulation" have been included under the authority of
Wilkinson, Barker, Knauer & Quinn, LLP, as experts in telecommunications law.
FCC matters unique to MobileMedia included in the description of the regulatory
requirements under the Communications Act and the regulations thereunder set
forth under "Risk Factors--Risks Common to Arch and MobileMedia--Government
Regulation, Foreign Ownership and Possible Redemption" and "Industry Overview--
Regulation" have been included under the authority of Wiley, Rein & Fielding as
experts in telecommunications law. Stockholders of Arch should not rely on
Wilkinson, Barker, Knauer & Quinn, LLP or Wiley, Rein & Fielding with respect
to any other matters.
STOCKHOLDER PROPOSALS
Arch expects to hold a 1999 Annual Meeting of Stockholders in May 1999. Any
proposal that an Arch stockholder intends to present at the 1999 Annual Meeting
of Stockholders must be submitted to the Secretary of Arch at its offices, 1800
West Park Drive, Westborough, Massachusetts 01581, no later than December 19,
1998 in order to be considered for inclusion in the proxy statement relating to
that meeting.
In addition, Arch's By-laws require that Arch be given advance notice of
stockholder nominations for election to Arch's Board and of other matters which
stockholders wish to present for action at an annual meeting of stockholders
(other than matters included in Arch's proxy statement in accordance with Rule
14a-8). The required notice must be made in writing and delivered or mailed to
the Secretary of Arch at the principal offices of Arch, and received not less
than 80 days prior to the 1999 Annual Meeting; provided, however that if less
than 90 days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, such nomination shall have been mailed or
delivered to the Secretary not later than the close of business on the 10th day
following the date on which the notice of the meeting was mailed or such public
disclosure was made, whichever occurs first. The 1999 Annual Meeting is
currently expected to be held on May 18, 1999. Assuming that this date does not
change, in order to comply with the time periods set forth in Arch's By-Laws,
appropriate notice would need to be provided no later than February 27, 1999.
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OTHER MATTERS
As of the date of this Proxy Statement/Prospectus, the Arch Board does not
know of any other matters to be presented for action by the stockholders at the
Special Meeting. If, however, any other matters not now known are properly
brought before the Special Meeting, the Arch proxy holders will vote upon the
same according to their discretion and best judgment.
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GLOSSARY OF CERTAIN DEFINED TERMS
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
ACE........................................ Arch Communications Enterprises, Inc.
ACE/USAM Merger............................ Merger by which ACE was merged into API.
ACI........................................ Arch Communications, Inc., a wholly owned
subsidiary of Arch.
ACI Notes.................................. ACI 12 3/4% Notes, ACI 9 1/2% Notes and ACI
14% Notes.
ACI 9 1/2% Notes........................... ACI's 9 1/2% Senior Notes due 2004.
ACI 12 3/4% Notes.......................... ACI's 12 3/4% Senior Notes due 2007.
ACI 14% Notes.............................. ACI's 14% Senior Notes due 2004.
ACI 9 1/2% Notes Indenture................. Indenture under which the ACI 9 1/2% Notes
are outstanding.
ACI 14% Notes Indenture.................... Indenture under which the ACI 14% Notes are
outstanding.
ACI 12 3/4% Notes Indenture................ Indenture under which the ACI 12 3/4% Notes
are outstanding.
Acquiring Person........................... Person or group of affiliated or associated
persons that attempts to or has acquired,
or obtained the right to acquire,
beneficial ownership of 15% or more (up to
33% in certain specified circumstances) of
the outstanding shares of the Arch Common
Stock.
Agent...................................... The Chase Manhattan Bank, as agent to the
DIP Credit Agreement.
ALJ........................................ Administrative law judge.
Adjusted Pro Forma EBITDA.................. EBITDA (net of restructuring charges and
bankruptcy related expenses, equity in loss
of affiliates, income tax benefit, interest
and non-operating expenses (net),
extraordinary items and amortization of
deferred gain on tower sale).
Amended Plan............................... Third Amended Joint Plan of Reorganization
of Parent and MobileMedia under Chapter 11,
dated as of December 1, 1998.
Antitrust Division......................... Antitrust Division of the Department of
Justice
API........................................ Arch Paging, Inc, a wholly owned subsidiary
of ACI.
API Credit Facility........................ Bank credit facility of Arch Paging, Inc.
API Credit Facility Increase............... $200.0 million increase to the API Credit
Facility.
Arch....................................... Arch Communications Group, Inc., a Delaware
corporation.
Arch Acquisition Proposal.................. Merger, consolidation, sale of material
assets, tender offer, recapitalization,
accumulation or acquisition of securities
issued by Arch, proxy solicitation or other
business combination involving Arch or any
of its subsidiaries.
</TABLE>
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<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Arch Adjusted EBITDA....................... EBITDA (net of restructuring charges,
equity in loss of affiliates, income tax
benefit, interest and non-operating
expenses (net) and extraordinary items).
Arch Board................................. The Board of Directors of Arch.
Arch By-laws............................... By-laws of Arch.
Arch Certificate........................... Restated Certificate of Incorporation of
Arch.
Arch Combined Common Stock................. Arch Common Stock and Class B Common Stock.
Arch Common Stock.......................... Common Stock, par value $.01 per share, of
Arch.
Arch Convertible Debentures................ Arch's 6 3/4% Convertible Subordinated
Debentures due 2003.
Arch Debenture Indenture................... Indenture under which the Arch Convertible
Debentures were issued.
Arch Discount Notes........................ Arch's 10 7/8% Senior Discount Notes due
2008.
Arch Discount Notes Indenture.............. Indenture under which the Arch Discount
Notes were issued.
Arch Executives............................ 16 executive officers of Arch.
Arch Indentures............................ API Credit Facility and the Indentures.
Arch Participation Warrant Agreement....... Warrant Agreement between Arch and The Bank
of New York with respect to Arch
Participation Warrants.
Arch Participation Warrant Certificate..... Warrant certificate evidencing Arch
Participation Warrants.
Arch Participation Warrants................ Warrants, exercisable until September 1,
2001, with a fixed exercise price equal to
$2.00 plus an amount to reflect
compounding, from the Effective Date until
September 1, 2001, at a 20% per annum
internal rate of return over the Rights
exercise price.
Arch Rights and Warrants................... Arch Stockholder Rights and the Arch
Participation Warrants.
Arch Rights Offering....................... Distribution by Arch to holders of Arch
Common Stock and Series C Preferred Stock
of rights to acquire shares of Arch Common
Stock. To the extent such Arch Stockholder
Rights are not exercised, Arch will
distribute Arch Participation Warrants to
acquire an equivalent number of shares of
Arch Common Stock in lieu of unexercised
Arch Stockholder Rights.
Arch Stockholder Registration Statement.... Registration Statement on Form S-4,
containing the Proxy Statement/Prospectus.
Arch Stockholder Rights.................... Rights to acquire shares of Arch Common
Stock distributed by Arch in the Arch
Rights Offering.
Arch Superior Proposal..................... Arch Acquisition Proposal that the Arch
Board determines, in good faith, would
result in a transaction more favorable to
Arch stockholders.
</TABLE>
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<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Arch Voting Stock.......................... Arch Common Stock and Series C Preferred
Stock (voting on an as-converted basis
together as a single class)
ARPU....................................... Average revenues per unit
August 18 Agreements....................... Original Merger Agreement, First Amended
Plan and the related documents.
Bankruptcy Code............................ United States Bankruptcy Code
Bankruptcy Court........................... U.S. Bankruptcy Court for the District of
Delaware.
Bankruptcy Filing.......................... Voluntary petitions for relief filed under
Bankruptcy Code by Parent and MobileMedia
on January 30, 1997 to implement an
operational and financial restructuring.
Bankruptcy Related Requirements............ Operation and information requirements of
the Office of United States Trustee and any
orders entered or approvals or
authorizations granted by the Bankruptcy
Court in the Insolvency Proceedings during
the period prior to the Effective Time.
Bear Stearns............................... Bear Stearns and Co., Inc.
Blackstone................................. The Blackstone Group, L.P.
Benbow..................................... Benbow PCS Ventures, Inc.
Benbow Investments......................... Benbow Investments, Inc.
Breakup Events............................. Events including (a) Arch's termination of
the Merger Agreement as a result of a
material breach of a representation,
warranty or covenant by MobileMedia; MMC's
or Arch's termination of the Merger
Agreement as a result of the failure of the
Confirmation Order to be entered due to
MobileMedia's creditors' failure to vote on
the Amended Plan; or Amendment of the
Amended Plan in a manner adverse to Arch
(b) MobileMedia's sale of all or a
substantial portion of its assets (other
than MobileMedia Tower Site Sale) and (c)
MobileMedia's termination of the Merger
Agreement in connection with a MobileMedia
Superior Proposal.
Bridge Facility............................ $120.0 million bridge facility commitment
executed by ACI and the Bear Stearns
Companies, Inc., TD Securities (USA), Inc.,
the Bank of New York and the Royal Bank of
Canada which would be available to Arch in
the absence of an offering of the Planned
ACI Notes.
Bridge Lenders............................. The Bear Stearns Companies, Inc., The Bank
of New York, TD Securities (USA) Inc. and
Royal Bank of Canada
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Bridge Loan................................ $120.0 million term loan will be available
to ACI in a single drawing upon the closing
of the Merger under the Bridge Facility
Bridge Warrants............................ Warrants granted to the Bridge Lenders for
the purchase of 5.0% of the Arch Common
Stock on a fully diluted basis if the
Bridge Loan has not been repaid prior to
the Bridge Loan maturity date.
Buyer Breakup Fee.......................... Liability of MobileMedia to Arch of $25.0
million at the time of a Breakup Event.
Buyer FCC Material Adverse Effect.......... A material adverse effect on the financial
condition and operating income of Arch and
its subsidiaries, taken as a whole,
excluding any effect generally applicable
to the economy or the industry in which
Arch conducts its business.
California Actions......................... Two lawsuits filed in the United States
District Court for the Northern District of
California and the Superior Court of
California against certain former officers
and certain present and former directors of
MobileMedia, certain investment entities
and Ernst & Young LLP
Cash Equivalent............................ Value of the Rights paid in cash that a
creditor would have received had its claim
been allowed as of the date that the Rights
Offering was commenced.
Certificate of Merger...................... Certificate of Merger filed with the
Delaware Secretary of State effecting the
Merger.
Change Date................................ Date on which Arch will experience an
ownership change as defined under Section
382(g) of the Tax Codes.
Chapter 11................................. Chapter 11 of the United States Bankruptcy
Code.
Charter Amendment.......................... Amendment to Arch Certificate to increase
authorized shares of Arch Common Stock;
designate a certain number of additional
shares as Class B Common Stock; and
increase number of authorized shares of
Series B Junior Participating Preferred
Stock.
Charter Amendment Proposal................. Proposal to amend the Arch Certificate
increasing the number of authorized shares
of Arch Common Stock from 75,000,000 to
365,000,000 shares, 65,000,000 of which
will be designated Class B Common Stock;
and increasing the number of authorized
shares of Series B Junior Participating
Preferred Stock.
Class B Common Stock....................... Class B Common Stock, par value $.01 per
share, of Arch.
Class 7 Claims............................. Claims of holders of MobileMedia promissory
notes based on alleged violations of
applicable securities laws and any claims
by officers or directors or underwriters
for indemnification related thereto.
</TABLE>
188
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Class 8 Claims............................. Claims of all equity interests in Parent
and all claims related to alleged
violations of applicable securities laws
and various claims for indemnification by
any officer, director, underwriter,
employee or professional related thereto.
Class 9 Claims............................. Any claim by Parent, MMC or any of MMC's
subsidiaries against one another and the
equity interests held by Parent, MMC or
MMC's subsidiaries in one another.
Class Period............................... Period between June 29, 1995 and September
27, 1996 during which certain former
officers of MobileMedia allegedly deceived
the investing public by making false
statements or omissions in press releases
and public fiings.
CMRS....................................... Commercial mobile radio services.
COAM....................................... Customer-owned and -maintained.
Combined Company........................... Arch, after giving effect to the
acquisition of MobileMedia.
Combined Company Projections............... The unaudited combined company projections
set forth in pages 81 to 84 hereof.
Communications Act......................... Communications Act of 1934, as amended.
Comparable Public Companies................ PageNet, Metrocall and SkyTel.
Compensation Committee..................... Executive Compensation Committee of the
Arch Board.
Complaint.................................. Consolidated amended complaint filed in the
New Jersey Actions.
Confidentiality Agreements................. Confidentiality agreements between Parent
and Arch.
Confirmation Date.......................... The date on which the Bankruptcy Court
enters an order confirming the Amended
Plan.
Confirmation Order......................... Order of the Bankruptcy Court confirming
the Amended Plan.
Conxus..................................... CONXUS Communications, Inc.
Creditor Stock Pool........................ The 14,344,969 shares of Arch Common Stock
to be issued under the Amended Plan to the
Unsecured Creditors in consideration of the
discharge of their claims against Parent
and MobileMedia that are classified as
Class 6 Claims.
CS First Boston............................ Credit Suisse First Boston Corporation.
Dial Page.................................. Dial Page Inc.
Dial Page Acquisition...................... Acquisition of Dial Page by MobileMedia.
Dial Page Notes............................ Dial Page 12 1/4% Senior Notes due 2000.
</TABLE>
189
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Debtor FCC Material Adverse Effect......... A material adverse effect on the financial
condition and operating income of
MobileMedia and its subsidiaries, taken as
a whole, excluding any effect generally
applicable to the economy or the industry
in which MobileMedia conducts its business.
Debtors.................................... Parent, MMC and all of MMC's subsidiaries.
December 1 Amendments...................... Amendments to the September 3 Agreements
and a Third Amended Joint Plan of
Reorganization, executed on December 3,
1998.
<CAPTION>
DGCL....................................... Delaware General Corporation Law.
DIP........................................ Debtor in possession.
DIP Agreement Lenders...................... Agent and certain other financial
institutions.
DIP Credit Agreement....................... Revolving Credit and Guarantee Agreement
dated as of January 30, 1997 among MMC, The
Chase Manhattan Bank and other lenders who
are a party thereto.
Disinterested Stockholders................. Each holder of less than 5% of the voting
power of Arch.
<S> <C>
Disqualifying Disposition.................. Occurs when participant in 1997 Option Plan
sells ISO Stock prior to having owned it
for at least two years from the Grant Date
and one year from the Exercise Date.
Disqualifying Sale......................... Occurs when a participant in the 1999
Purchase Plan sells Arch Common Stock
within one year after acquiring it or
within two years after the Offering
Commencement Date.
Divisional Reorganization.................. Reorganization of Arch's operations.
EBITDA..................................... Earnings before interest, taxes,
depreciation and amortization.
EBTDA...................................... EBITDA less interest expense.
Effective Date............................. Date Amended Plan becomes effective.
Effective Time............................. The Effective Time of the Merger, occurring
upon filing of the Certificate of Merger or
such later time as may be specified in the
Certificate of Merger.
Exchange Act............................... Securities Exchange Act of 1934, as
amended.
Exercise Date.............................. Date incentive stock option is exercised.
</TABLE>
190
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Expiration Date............................ 5:00 p.m., New York City time on the date
selected by Arch and MobileMedia on or
prior to later of (i) the Confirmation Date
or (ii) the date on which the FCC Grant is
issued, which date must be at least 15 days
after the date on which all closing
conditions in the Merger Agreement (other
than (i) the requirement that the FCC Grant
has become a final order (ii) the
requirement that the Confirmation Order has
become a final order and (iii) other
conditions which by their terms cannot be
satisfied until the Effective Time) are
first satisfied or, if legally permissible,
waived.
Exhibit Opinion............................ Tax opinion of Hale and Dorr LLP, counsel
to Arch.
FCC........................................ Federal Communications Commission.
FCC Applications........................... Applications, filed jointly by Arch and
MobileMedia on September 2, 1998,
requesting the FCC's consent to the
transfer of control of the Debtor
Authorizations; consent to the transfer of
control of Buyer Authorizations from Arch's
current stockholders; termination of the
Hearing; and grant to Arch of permanent
license authority to operate certain
stations.
FCC Grant.................................. FCC order consenting to requests in FCC
Applications.
FCC Order.................................. FCC order, issued April 8, 1997, commencing
an administrative hearing to inquire into
the qualification of MobileMedia to remain
an FCC licensee.
First Amended Plan......................... First Amended Joint Plan of Reorganization
dated as of August 18, 1998.
Fort Lee Lease............................. Lease between MobileMedia and Miller
Freeman, Inc. for MobileMedia's office
headquarters in Fort Lee, New Jersey.
Fractional Share Value..................... Fair value of each outstanding share of
Arch Common Stock held on the Split Date.
FTC........................................ Federal Trade Commission.
GAAP....................................... Generally accepted accounting principles.
Glenayre................................... Glenayre Electronics, Inc.
Goldman Sachs.............................. Goldman, Sachs & Co. and its parent holding
company, The Goldman Sachs Group, L.P.
Goodwill................................... Excess of the purchase price paid by Arch
to acquire MobileMedia over the net fair
market value allocated to the indentifiable
assets and liabilities of MobileMedia
Grant Date................................. Date on which ISO Stock was granted.
</TABLE>
191
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Hearing.................................... Hearing in WT Docket No. 97-115, In the
matter of MobileMedia Corporation, et al.
HLH&Z...................................... Houlihan, Lokey, Howard & Zukin.
HSR Act.................................... Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
Initial Purchasers......................... Bear Stearns, Barclays Capital Inc., RBC
Dominion Securities Corporation, BNY
Capital Markets, Inc. and TD Securities
(USA) Inc.
Information Agent.......................... MacKenzie Partners, Inc.
Initial Merger Order....................... Bankruptcy Court order dated September 4,
1998 approving exclusivity provisions,
breakup fees and expense reimbursement
provisions of the Merger Agreement.
IRS........................................ Internal Revenue Service.
ISO Stock.................................. Incentive Stock Option.
Key Suppliers.............................. Panasonic, Motorola, Glenayre and NEC.
LECs....................................... Local exchange carriers.
LQA........................................ Latest quarter annualized.
Market Price............................... The average last reported sale price per
share of the Arch Common Stock on the NNM
for the ten trading days immediately
preceding the date of filing of the Stock
Split Amendment.
Merger..................................... The proposed Merger of MMC with and into
Merger Subsidiary pursuant to the Merger
Agreement.
Merger Agreement........................... Agreement and Plan of Merger dated as of
August 18, 1998, and amended as of
September 3, 1998 and as of December 1,
1998, by and among Parent, MMC, the Merger
Subsidiary and Arch.
Merger Benefits............................ Certain estimates of anticipated cost
savings, capital expenditure avoidance and
other benefits.
Merger Subsidiary.......................... Farm Team Corp., a wholly-owned subsidiary
of Arch.
Merger Transactions........................ Merger Agreement, Merger and other
transactions contemplated thereby.
Metrocall.................................. Metrocall, Inc.
MMC........................................ MobileMedia Communications, Inc., a wholly-
owned subsidiary of Parent and currently
operating as a debtor-in-possession under
Chapter 11.
MobileComm................................. Mobile Communications Corporation of
America.
MobileComm Acquisition..................... Acquisition of MobileComm by MMC.
MobileMedia................................ MMC and its subsidiaries.
MobileMedia 1995 Credit Agreement.......... MMC's $750.0 million senior secured credit
agreement.
</TABLE>
192
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
MobileMedia 1995 Credit Facility........... MobileMedia's loan facilities aggregating
$750.0 million, consisting of a $550.0
million secured term loan facility and a
$200.0 million secured revolving loan
facility.
MobileMedia Adjusted EBITDA................ Earnings before other income (expense),
taxes, depreciation, amortization,
impairment of long-lived assets,
amortization of deferred gain on tower sale
and restructuring costs.
MobileMedia Acquisition Proposal........... Merger, consolidation, sale of material
assets, tender offer, recapitalization,
accumulation or acquisition of securities
issued by MobileMedia, proxy solicitation
or other business combination involving
MobileMedia or any of its subsidiaries.
MobileMedia Boards......................... Board of Directors of Parent and Board of
Directors of MMC.
MobileMedia Breakup Fee.................... Liability of Arch to MMC of $32.5 million
for Arch's failure, not otherwise excused,
to perform its obligation under the Merger
Agreement.
MobileMedia Deferred Coupon Notes.......... $210.0 million of Senior Subordinated
Deferred Coupon Notes issued by
MobileMedia.
MobileMedia Notes.......................... MobileMedia 9 3/8% Notes and certain other
outstanding notes of MobileMedia
MobileMedia Proposal....................... The issuance of Arch Combined Common Stock
and warrants to acquire shares of Arch
Common Stock pursuant to the Merger
Agreement, the Amended Plan and Standby
Purchase Agreements.
MobileMedia Stockholders................... Holders of Parent's common stock.
MobileMedia Superior Proposal.............. MobileMedia Acquisition Proposal that the
MMC Board determines, in good faith, would
result in a transaction more favorable to
MobileMedia claimholders.
MobileMedia Tower Site Sale................ Sale of MMC's transmission towers and
related real property.
MobileMedia Tower Sites.................... Certain transmission towers and associated
assets of MobileMedia.
MobileMedia Tower Site Sale Agreement...... Purchase Agreement between MobileMedia and
Pinnacle in connection with the MobileMedia
Tower Site Sale.
Motorola................................... Motorola, Inc.
Named Executive Officers................... Arch's Chief Executive Officer and other
executive officers.
NASD....................................... National Association of Securities Dealers,
Inc.
New Certificates........................... New certificates representing the number of
whole shares of Arch Common Stock into
which the shares of Arch Common Stock have
been converted as a result of the Reverse
Split.
New Jersey Actions......................... Five actions filed against MobileMedia and
certain of its officers, directors and
underwriters in the United States District
Court for the District of New Jersey.
</TABLE>
193
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
1999 Purchase Plan......................... Arch's 1999 Employee Stock Purchase Plan.
1997 Option Plan........................... Arch's 1997 Stock Option Plan.
NEC........................................ NEC America Inc.
NNM........................................ Nasdaq National Market.
NOL........................................ Net operating loss.
Northwestern Mutual........................ Northwestern Mutual Life Insurance Company.
N-PCS...................................... Narrowband personal communications
services.
N-PCS Construction......................... N-PCS network construction.
NSO Stock.................................. Non-statutory stock option.
Offering Commencement Date................. Date an Offering of the 1999 Purchase Plan
is commenced.
Offering Period............................ Designated payroll deduction period under
the 1999 Purchase Plan.
Old Arch................................... A predecessor to Arch, also named Arch
Communications Group, Inc. On September 7,
1995 Old Arch acquired USA Mobile by
merging with and into USA Mobile, which
simultaneously changed its name to Arch
Communications Group, Inc.
Old Certificates........................... Existing Arch stock certificates.
Option Plan Proposal....................... Proposal to amend Arch's 1997 Stock Option
Plan to increase the number of shares of
Arch Common Stock issuable under such plan
from 1,500,000 to 6,000,000 shares.
Original Merger Agreement.................. Agreement and Plan of Merger dated as of
August 18, 1998.
Original Plan.............................. Filing of original plan of reorganization
by MobileMedia on January 27, 1998
providing for the continued operation of
MobileMedia as a stand-alone entity.
PCS........................................ Broadband personal communications services.
Page Call.................................. Page Call, Inc.
Page Net................................... Paging Network, Inc.
Paging revenue............................. Services, rents and maintenance revenues
for MobileMedia's paging and related
services.
Panasonic.................................. Panasonic Communications & Systems Company.
Parent..................................... MobileMedia Corporation, a Delaware
corporation currently operating as a
debtor-in-possession under Chapter 11.
Participants............................... Participating employees under Arch's 1999
Purchase Plan.
PCP........................................ Private Carrier Paging Operator.
Petition Date.............................. January 30, 1997, the date the Debtors
filed voluntary petitions for
reorganization under Chapter 11.
</TABLE>
194
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Pinnacle................................... Pinnacle Towers, Inc.
Planned ACI Notes.......................... To fund the estimated cash payments
required by the Merger, ACI intends to
issue $200 million of new senior notes.
Predecessor................................ Metromedia Paging Services.
Preferred Stock Rights Plan................ Arch's stockholders rights plan.
Preferred Stock Unit....................... A unit consisting of one one-thousandth of
a share of Arch Series B Preferred stock at
a cash purchase price of $150.00 per unit
subject to adjustment.
Pre-Petition Agent......................... The Chase Manhattan Bank, agent for the
Pre-Petition Lenders.
Pre-Petition Lenders....................... Lenders under the MobileMedia 1995 Credit
Agreement.
Private Notes.............................. $130.0 million principal amount of private
notes issued and sold by ACI in June 1998.
Public Notice.............................. Public notice issued by FCC on January 13,
1997 relating to the status of certain FCC
authorizations held by MobileMedia.
Purchase Right............................. One preferred stock purchase right attached
to each outstanding share of Arch Common
Stock.
RCC........................................ Radio Common Carrier.
Record Date................................ The record date for the Special Meeting
(close of business on December 11, 1998).
Registrable Securities..................... Arch Common Stock, Arch Participation
Warrants (and the Arch Common Stock
issuable upon exercise), Class B Common
Stock (and the Arch Common Stock issuable
upon conversion) and any securities
received from Arch by reason of stock
dividends or similar matters.
Registration Statement..................... Registration Statement filed by Arch to
effect the Rights Offering.
Related Transactions....................... The completion of the Rights Offering;
issuance and sale of Planned ACI Notes;
additional borrowings under API Credit
Facility; issuance of Arch Common Stock in
accordance with the Amended Plan; and
payment by Arch of $479.0 million in cash
in accordance with the Amended Plan.
Reorganization............................. All transactions involving the payment of
pre- and post-petition claims by the
Debtor's under Chapter 11 of the Bankruptcy
Code.
Retention Agreements....................... Executive Retention Agreements between Arch
and Arch Executives.
</TABLE>
195
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Reverse Split.............................. Five shares of Arch Common Stock will be
converted into one share of Arch Common
Stock.
Rights..................................... Transferable rights to acquire Arch
securities.
Rights Offering............................ Distribution to the Unsecured Creditors of
certain transferable rights to acquire
securities of Arch.
Sandler.................................... Sandler Capital Management Company, Inc.
SARs....................................... Stock appreciation rights.
SEC........................................ Securities and Exchange Commission.
Section 382 Limitation..................... Restrictions on a corporation's utilization
of its NOL carryforwards and other tax
attributes imposed by Section 382 of the
Tax Code.
Securities Act............................. Securities Act of 1933, as amended.
Securities Actions......................... California Actions and the New Jersey
Actions.
September 3 Amendments..................... Amendments to the August 18 Agreements and
a Second Amended Joint Plan of
Reorganization, executed September 3, 1998.
Series C Preferred Stock................... Series C Convertible Preferred Stock, par
value $.01 per share, of Arch.
SFAS....................................... Statement of Financial Accounting
Standards.
SFAS No. 130............................... Statement of Financial Accounting Standards
No. 130 "Reporting Comprehensive Income".
SFAS No. 131............................... Statement of Financial Accounting Standards
No. 131 "Disclosures about Segments of an
Enterprise and Related Information".
SkyTel..................................... SkyTel Communications, Inc.
SOP 98-1................................... Statement of Position 98-1.
SOP 98-5................................... Statement of Position 98-5.
Special Meeting............................ Special Meeting of Arch stockholders to be
held on January , 1999 at 10:00 a.m.,
local time, at the offices of Hale and Dorr
LLP, 60 State Street, Boston, MA 02109.
Split Date................................. Date that certificate of amendment to Arch
Certificate effecting the Reverse Split is
filed with the Delaware Secretary of State.
Split Factor............................... The whole number obtained by dividing $6.00
by the Market Price and rounding the result
to the nearest whole number.
Standby Maximum Reduction Number........... The amount by which each Standby Purchaser
may reduce its commitment to purchase Arch
Combined Common Stock; amount equal to the
product of (i) the aggregate consideration
paid upon the exercise of Arch Stockholder
Profits and (ii) a fraction, the numerator
of which is the dollar amount of the total
commitment of such individual Standby
Purchaser and the denominator of which is
$217.0 million.
</TABLE>
196
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Standby Purchase Agreements................ Certain separate commitment letters, dated
as of August 18, 1998 and amended as of
September 3, 1998 and as of December 1,
1998, among Arch, MMC and the Standby
Purchasers whereby the Standby Purchasers
will purchase certain shares as well as any
and all other shares not purchased by other
Unsecured Creditors for an aggregate
purchase price of up to $217.0 million.
Standby Purchaser Registration Rights Registration rights agreement with the
Agreement................................. Standby Purchasers.
Standby Purchasers......................... Certain Unsecured Creditors of Parent and
MobileMedia comprised of W.R. Huff,
Northwestern Mutual, CS First Boston and
Whippoorwill.
Stock Acquisition Date..................... Ten business days following a public
announcement that an Acquiring Person has
acquired, or obtained the right to acquire,
beneficial ownership of 15% or more (up to
33% in certain specified circumstances) of
the outstanding shares of the Arch Common
Stock.
Stock Purchase Plan Proposal............... Proposal to implement Arch's 1999 Employee
Stock Purchase Plan.
Stock Split Amendment...................... Amendment to Arch certificate to effect a
reverse split of Arch Common Stock.
Stock Split Proposal....................... Proposal to amend the Arch Certificate to
effect a reverse stock split.
Subscription Agent......................... The Bank of New York.
Subscription Certificate................... Subscription Certificate evidencing the
Arch Stockholder Rights.
Surviving Corporation...................... Merger Subsidiary.
Tax Code................................... Internal Revenue Code of 1986, as amended.
Taxable Effect............................. The effect that the distribution of the
Rights and Warrants to holders of Arch
Common Stock may have, under Section 305
(b)(2) of the Tax Code, if such
distribution has the effect of the receipt
of money or other property by some Arch
Stockholders and an increase in the
proportionate interests of other Arch
shareholder in the assets or earnings and
profits of Arch.
Telecommunications Act..................... Telecommunications Act of 1996.
Third Amended Disclosure Statement......... Third Amended Disclosure Statement related
to the Amended Plan and filed with the
Bankruptcy Court on December 5, 1998.
Tower Site Sale............................ Sale of certain tower sites owned by Arch.
</TABLE>
197
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM DEFINITION
- ------------ ----------
<S> <C>
Tranche A Facility......................... $175.0 million reducing revolving credit
facility amendment to ACE's existing credit
facility.
Trance B Facility.......................... $100.0 million 364-day revolving credit
facility under which the principal amount
outstanding on the 364th day following the
closing will convert to a term loan.
Tranche C Facility......................... $125.0 million term loan.
10% Stockholder............................ Any stockholder who as a result of the
Merger becomes the beneficial owner of at
least 10% of the outstanding Arch Common
Stock.
10% Stockholder Registration Rights Registration rights agreement with the 10%
Agreement................................. Stockholders.
Unsecured Creditors........................ The unsecured creditors of Parent and
MobileMedia.
Unsecured Creditors Committee.............. Official Committee of Unsecured Creditors.
Universal Service.......................... Widespread availability of
telecommunications services (including to
low income consumers).
Universal Service Fund..................... Fund created for Universal Service.
USAM....................................... USA Mobile Communications, Inc. II.
USA Mobile................................. USA Mobile Communications Holdings, Inc.
USA Mobile Merger.......................... Merger of Old Arch with and into USA
Mobile.
Warrant Agent.............................. The Bank of New York.
Warrant Exercise Price..................... Fixed per share exercise price equal to the
amount that would result at September 1,
2001 from an investment of $2.00 on the
Effective Date assuming a 20% per annum
internal rate of return.
Whippoorwill............................... Whippoorwill Associates, Inc.
W.R. Huff.................................. W.R. Huff Asset Management Co., L.L.C.
WTO Agreement.............................. World Trade Organization Agreement.
Y2K Project Group.......................... Arch's cross-functional project group to
work on the Year 2000 problem.
</TABLE>
198
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Arch Communications Group, Inc.
Report of Independent Public Accountants................................ F-2
Consolidated Balance Sheets as of December 31, 1996 and 1997 and
September 30, 1998 (unaudited)......................................... F-3
Consolidated Statements of Operations for Each of the Three Years in the
Period Ended December 31, 1997 and for the Nine Months Ended September
30, 1997 and 1998 (unaudited).......................................... F-4
Consolidated Statements of Stockholders' Equity (Deficit) for Each of
the Three Years in the Period Ended December 31, 1997 and for the Nine
Months Ended September 30, 1998 (unaudited)............................ F-5
Consolidated Statements of Cash Flows for Each of the Three Years in the
Period Ended December 31, 1997 and for the Nine Months Ended September
30, 1997 and 1998 (unaudited).......................................... F-6
Notes to Consolidated Financial Statements.............................. F-7
MobileMedia Communications, Inc. and Subsidiaries
Report of Independent Public Auditors................................... F-22
Consolidated Balance Sheets as of December 31, 1996 and 1997 and
September 30, 1998 (unaudited)......................................... F-23
Consolidated Statements of Operations for Each of the Three Years in the
Period Ended December 31, 1997 and for the Nine Months Ended September
30, 1997 and 1998 (unaudited).......................................... F-24
Consolidated Statement of Changes in Stockholders' Equity (Deficit) for
Each of the Three Years in the Period Ended December 31, 1997 and for
the Nine Months Ended September 30, 1998 (unaudited)................... F-25
Consolidated Statements of Cash Flows for Each of the Three Years in the
Period Ended December 31, 1997 and for the Nine Months Ended September
30, 1997 and 1998 (unaudited).......................................... F-26
Notes to Consolidated Financial Statements.............................. F-27
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Arch Communications Group, Inc.:
We have audited the accompanying consolidated balance sheets of Arch
Communications Group, Inc. (a Delaware corporation) (the "Company") and
subsidiaries as of December 31, 1996 and 1997, and the related consolidated
statements of operations, stockholders' equity (deficit) and cash flows for
each of the three years in the period ended December 31, 1997. These
consolidated financial statements and the schedule referred to below are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these consolidated financial statements and the schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Arch
Communications Group, Inc. and subsidiaries as of December 31, 1996 and 1997,
and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 1997, in conformity with generally
accepted accounting principles.
Our audits were made for the purpose of forming an opinion on the basic
consolidated financial statements taken as a whole. The schedule listed in
Item 21(b) is presented for purposes of complying with the Securities and
Exchange Commission's rules and is not part of the basic consolidated
financial statements. The schedule has been subjected to the auditing
procedures applied in the audits of the basic consolidated financial
statements and, in our opinion, fairly states in all material respects the
financial data required to be set forth therein in relation to the basic
consolidated financial statements taken as a whole.
Arthur Andersen LLP
Boston, Massachusetts
February 9, 1998 (except with respect to
the matters discussed in Notes 3 and 4,
as to which the date is June 29, 1998)
F-2
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------- SEPTEMBER 30,
1996 1997 1998
---------- ---------- -------------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.............. $ 3,497 $ 3,328 $ 6,571
Accounts receivable (less reserves of
$4,111, $5,744 and $7,375 in 1996,
1997 and 1998, respectively) 25,344 30,147 34,496
Inventories............................ 10,239 12,633 10,578
Prepaid expenses and other............. 4,531 4,917 4,170
---------- ---------- --------
Total current assets................. 43,611 51,025 55,815
---------- ---------- --------
Property and equipment, at cost:
Land, buildings and improvements....... 8,780 10,089 10,382
Paging and computer equipment.......... 339,391 361,713 393,808
Furniture, fixtures and vehicles....... 9,921 16,233 17,115
---------- ---------- --------
358,092 388,035 421,305
Less accumulated depreciation and
amortization.......................... 96,448 146,542 197,416
---------- ---------- --------
Property and equipment, net............ 261,644 241,493 223,889
---------- ---------- --------
Intangible and other assets (less
accumulated amortization of $141,710,
$260,932 and $342,101 in 1996, 1997 and
1998, respectively)..................... 841,501 728,202 662,662
---------- ---------- --------
$1,146,756 $1,020,720 $942,366
========== ========== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
(DEFICIT)
Current liabilities:
Current maturities of long-term debt... $ 46 $ 24,513 $ --
Accounts payable....................... 17,395 22,486 23,571
Accrued restructuring charge........... -- -- 14,810
Accrued expenses....................... 14,287 11,894 12,523
Accrued interest....................... 10,264 11,249 18,767
Customer deposits...................... 6,698 6,150 5,340
Deferred revenue....................... 7,181 8,787 11,349
---------- ---------- --------
Total current liabilities............ 55,871 85,079 86,360
---------- ---------- --------
Long-term debt, less current maturities.. 918,150 968,896 992,790
---------- ---------- --------
Other long-term liabilities.............. 21,172 -- 28,639
---------- ---------- --------
Commitments and contingencies
Redeemable preferred stock............... 3,712 -- --
---------- ---------- --------
Stockholders' equity (deficit):
Preferred stock--$.01 par value,
authorized 10,000,000 shares, 250,000
shares issued ($25,515 aggregate
liquidation preference)............... -- -- 3
Common stock--$.01 par value,
authorized 75,000,000 shares, issued
and outstanding: 20,712,220,
20,863,563 and 21,067,110 shares in
1996, 1997 and 1998, respectively..... 207 209 211
Additional paid-in capital............. 350,444 351,210 377,382
Accumulated deficit.................... (202,800) (384,674) (543,019)
---------- ---------- --------
Total stockholders' equity (deficit). 147,851 (33,255) (165,423)
---------- ---------- --------
$1,146,756 $1,020,720 $942,366
========== ========== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEARS ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------- ----------------------
1995 1996 1997 1997 1998
---------- ---------- ---------- ---------- ----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Service, rental and
maintenance revenues... $ 138,466 $ 291,399 $ 351,944 $ 261,570 $ 277,826
Product sales........... 24,132 39,971 44,897 34,029 31,811
---------- ---------- ---------- ---------- ----------
Total revenues...... 162,598 331,370 396,841 295,599 309,637
Cost of products sold... (20,789) (27,469) (29,158) (22,044) (21,863)
---------- ---------- ---------- ---------- ----------
141,809 303,901 367,683 273,555 287,774
---------- ---------- ---------- ---------- ----------
Operating expenses:
Service, rental and
maintenance.......... 29,673 64,957 79,836 59,227 60,812
Selling............... 24,502 46,962 51,474 39,019 36,902
General and
administrative....... 40,448 86,181 106,041 78,878 84,527
Depreciation and
amortization......... 60,205 191,871 232,347 179,917 164,990
Restructuring charge.. -- -- -- -- 16,100
---------- ---------- ---------- ---------- ----------
Total operating
expenses........... 154,828 389,971 469,698 357,041 363,331
---------- ---------- ---------- ---------- ----------
Operating income (loss). (13,019) (86,070) (102,015) (83,486) (75,557)
Interest expense........ (22,560) (77,353) (98,063) (73,057) (79,592)
Interest income......... 38 1,426 904 621 1,258
Equity in loss of
affiliate.............. (3,977) (1,968) (3,872) (2,828) (2,219)
---------- ---------- ---------- ---------- ----------
Income (loss) before
income tax benefit and
extraordinary item..... (39,518) (163,965) (203,046) (158,750) (156,110)
Benefit from income
taxes.................. 4,600 51,207 21,172 15,900 --
---------- ---------- ---------- ---------- ----------
Income (loss) before
extraordinary item..... (34,918) (112,758) (181,874) (142,850) (156,110)
Extraordinary charge
from early
extinguishment of debt. (1,684) (1,904) -- -- (1,720)
---------- ---------- ---------- ---------- ----------
Net income (loss)....... (36,602) (114,662) (181,874) (142,850) (157,830)
Accretion of redeemable
preferred stock........ (102) (336) (32) (32) --
Preferred stock
dividend............... -- -- -- -- (515)
---------- ---------- ---------- ---------- ----------
Net income (loss) to
common stockholders.... $ (36,704) $ (114,998) $ (181,906) $ (142,882) $ (158,345)
========== ========== ========== ========== ==========
Basic/diluted income
(loss) per common share
before extraordinary
item................... $ (2.60) $ (5.53) $ (8.77) $ (6.89) $ (7.47)
Extraordinary charge
from early
extinguishment of debt
per basic/diluted
common share........... $ (.12) $ (.09) $ -- $ -- $ (.08)
---------- ---------- ---------- ---------- ----------
Basic/diluted net income
(loss) per common
share.................. $ (2.72) $ (5.62) $ (8.77) $ (6.89) $ (7.55)
========== ========== ========== ========== ==========
Basic/diluted weighted
average number of
common shares
outstanding............ 13,497,734 20,445,943 20,746,240 20,735,730 20,968,281
========== ========== ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
TOTAL
ADDITIONAL STOCKHOLDERS'
PREFERRED COMMON PAID-IN ACCUMULATED EQUITY
STOCK STOCK CAPITAL DEFICIT (DEFICIT)
--------- ------ ---------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Balance, December 31,
1994.................... $-- $ 81 $ 60,823 $ (51,536) $ 9,368
Exercise of options to
purchase 475,903
shares of common
stock................. -- 5 5,137 -- 5,142
Issuance of 7,994,493
shares of common stock
to acquire stock of
paging companies...... -- 80 215,819 -- 215,899
Issuance of 2,706,659
shares of common stock
(net of issuance costs
of $3,016)............ -- 27 46,354 -- 46,381
Issuance of 417,311
shares of common stock
upon conversion of
convertible
subordinated
debentures (net of
costs of conversion of
$192)................. -- 4 6,794 -- 6,798
Accretion of redeemable
preferred stock....... -- -- (102) -- (102)
Net loss............... -- -- -- (36,602) (36,602)
---- ---- -------- --------- ---------
Balance, December 31,
1995.................... -- 197 334,825 (88,138) 246,884
Exercise of options to
purchase 169,308
shares of common
stock................. -- 2 1,469 -- 1,471
Issuance of 46,842
shares of common stock
under Arch's Employee
Stock Purchase Plan... -- -- 373 -- 373
Issuance of 843,039
shares of common stock
upon conversion of
convertible
subordinated
debentures............ -- 8 14,113 -- 14,121
Accretion of redeemable
preferred stock....... -- -- (336) -- (336)
Net loss............... -- -- -- (114,662) (114,662)
---- ---- -------- --------- ---------
Balance, December 31,
1996.................... -- 207 350,444 (202,800) 147,851
Issuance of 151,343
shares of common stock
under Arch's Employee
Stock Purchase Plan... -- 2 798 -- 800
Accretion of redeemable
preferred stock....... -- -- (32) -- (32)
Net loss............... -- -- -- (181,874) (181,874)
---- ---- -------- --------- ---------
Balance, December 31,
1997.................... -- 209 351,210 (384,674) (33,255)
Exercise of options to
purchase 94,032 shares
of common stock
(unaudited)........... -- 1 293 -- 294
Issuance of 250,000
shares of preferred
stock (unaudited)..... 3 -- 24,997 -- 25,000
Issuance of 109,515
shares of common stock
under Arch's Employee
Stock Purchase Plan
(unaudited)........... -- 1 367 -- 368
Preferred stock
dividend.............. -- -- 515 (515) --
Net loss (unaudited)... -- -- -- (157,830) (157,830)
---- ---- -------- --------- ---------
Balance, September 30,
1998 (unaudited)........ $ 3 $211 $377,382 $(543,019) $(165,423)
==== ==== ======== ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
YEARS ENDED DECEMBER 31, ENDED SEPTEMBER 30,
------------------------------ --------------------
1995 1996 1997 1997 1998
-------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Cash flows from
operating activities:
Net income (loss)...... $(36,602) $(114,662) $(181,874) $(142,850) $(157,830)
Adjustments to
reconcile net income
(loss) to net cash
provided by operating
activities:
Depreciation and
amortization.......... 60,205 191,871 232,347 179,917 164,990
Deferred income tax
benefit............... (4,600) (51,207) (21,172) (15,900) --
Extraordinary charge
from early
extinguishment of
debt.................. 1,684 1,904 -- -- 1,720
Equity in loss of
affiliate............. 3,977 1,968 3,872 2,828 2,219
Accretion of discount
on senior notes....... -- 24,273 33,259 24,611 27,430
Accounts receivable
loss provision........ 3,915 8,198 7,181 5,585 6,313
Changes in assets and
liabilities, net of
effect from
acquisitions of paging
companies:
Accounts receivable... (9,582) (15,513) (11,984) (8,481) (10,662)
Inventories........... (3,176) 1,845 (2,394) (3,677) 2,055
Prepaid expenses and
other................ (511) 89 (386) 679 747
Accounts payable and
accrued expenses..... (551) (12,520) 3,683 875 24,042
Customer deposits and
deferred revenue..... (10) 1,556 1,058 964 1,752
Other long-term
liabilities.......... -- -- -- -- 28,639
-------- --------- --------- --------- ---------
Net cash provided by
operating activities... 14,749 37,802 63,590 44,551 91,415
-------- --------- --------- --------- ---------
Cash flows from
investing activities:
Additions to property
and equipment, net.... (45,331) (138,899) (87,868) (63,694) (58,029)
Additions to intangible
and other assets...... (15,137) (26,307) (14,901) (10,978) (27,756)
Acquisition of paging
companies, net of cash
acquired.............. (132,081) (325,420) -- -- --
-------- --------- --------- --------- ---------
Net cash used for
investing activities... (192,549) (490,626) (102,769) (74,672) (85,785)
-------- --------- --------- --------- ---------
Cash flows from
financing activities:
Issuance of long-term
debt.................. 191,617 676,000 91,000 91,000 455,964
Repayment of long-term
debt.................. (63,705) (225,166) (49,046) (56,035) (484,013)
Repayment of redeemable
preferred stock....... -- -- (3,744) (3,744) --
Net proceeds from sale
of preferred stock.... -- -- -- -- 25,000
Net proceeds from sale
of common stock....... 51,180 1,844 800 424 662
-------- --------- --------- --------- ---------
Net cash provided by
(used in) financing
activities............. 179,092 452,678 39,010 31,645 (2,387)
-------- --------- --------- --------- ---------
Net increase (decrease)
in cash and cash
equivalents............ 1,292 (146) (169) 1,524 3,243
Cash and cash
equivalents, beginning
of period.............. 2,351 3,643 3,497 3,497 3,328
-------- --------- --------- --------- ---------
Cash and cash
equivalents, end of
period................. $ 3,643 $ 3,497 $ 3,328 $ 5,021 $ 6,571
======== ========= ========= ========= =========
Supplemental disclosure:
Interest paid.......... $ 20,933 $ 48,905 $ 62,231 $ 45,366 $ 42,962
======== ========= ========= ========= =========
Issuance of common
stock for acquisition
of paging companies... $215,899 $ -- $ -- $ -- $ --
======== ========= ========= ========= =========
Issuance of common
stock for convertible
debentures............ $ 6,990 $ 14,121 $ -- $ -- $ --
======== ========= ========= ========= =========
Accretion of redeemable
preferred stock....... $ 102 $ 336 $ 32 $ 32 $ --
======== ========= ========= ========= =========
Liabilities assumed in
acquisition of paging
companies............. $314,139 $ 58,233 $ -- $ -- $ --
======== ========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Organization--Arch Communications Group, Inc. ("Arch" or the "Company") is a
leading provider of wireless messaging services, primarily paging services,
and is the second largest paging company in the United States (based on
EBITDA). The Company had 4.2 million pagers in service at September 30, 1998.
Unaudited Interim Consolidated Financial Statements--The consolidated
balance sheet as of September 30, 1998, the consolidated statements of
operations and cash flows for the nine months ended September 30, 1997 and
1998 and the consolidated statement of stockholders' equity (deficit) for the
nine months ended September 30, 1998 are unaudited and, in the opinion of the
Company's management, include all adjustments and accruals, consisting only of
normal recurring accrual adjustments, which are necessary for a fair
presentation of the Company's consolidated financial position, results of
operations and cash flows. The results of operations for the nine months ended
September 30, 1998 are not necessarily indicative of the results that may be
expected for the full year.
Principles of Consolidation--The accompanying consolidated financial
statements include the accounts of the Company, and its wholly-owned
subsidiaries. All significant intercompany accounts and transactions have been
eliminated.
Revenue Recognition--Arch recognizes revenue under rental and service
agreements with customers as the related services are performed. Maintenance
revenues and related costs are recognized ratably over the respective terms of
the agreements. Sales of equipment are recognized upon delivery. Commissions
are recognized as an expense when incurred.
Use of Estimates--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Cash Equivalents--Cash equivalents include short-term, interest-bearing
instruments purchased with remaining maturities of three months or less. The
carrying amount approximates fair value due to the relatively short period to
maturity of these instruments.
Inventories--Inventories consist of new pagers which are held specifically
for resale. Inventories are stated at the lower of cost or market, with cost
determined on a first-in, first-out basis.
Property and Equipment--Pagers sold or otherwise retired are removed from
the accounts at their net book value using the first-in, first-out method.
Property and equipment is stated at cost and is depreciated using the
straight-line method over the following estimated useful lives:
<TABLE>
<CAPTION>
ESTIMATED
USEFUL
ASSET CLASSIFICATION LIFE
-------------------- ----------
<S> <C>
Buildings and improvements.................................... 20 Years
Leasehold improvements........................................ Lease Term
Pagers........................................................ 3 Years
Paging and computer equipment................................. 5-8 Years
Furniture and fixtures........................................ 5-8 Years
Vehicles...................................................... 3 Years
</TABLE>
Effective October 1, 1995, Arch changed its estimate of the useful life of
pagers from four years to three years. This change was made to better reflect
the estimated period during which pagers will produce equipment rental
revenue. The change did not have a material effect on depreciation expense or
net loss in the quarter ended December 31, 1995.
F-7
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Depreciation and amortization expense related to property and equipment
totaled $25.0 million, $87.5 million and $108.0 million for the years ended
December 31, 1995, 1996 and 1997, respectively.
Intangible and Other Assets--Intangible and other assets, net of accumulated
amortization, are composed of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------- SEPTEMBER 30,
1996 1997 1998
-------- -------- -------------
(UNAUDITED)
<S> <C> <C> <C>
Goodwill................ $351,969 $312,017 $281,847
Purchased FCC licenses.. 330,483 293,922 265,873
Purchased subscriber
lists.................. 120,981 87,281 64,341
Deferred financing
costs.................. 12,449 8,752 21,885
Investment in CONXUS
Communications, Inc.... 6,500 6,500 6,500
Investment in Benbow PCS
Ventures, Inc.......... 3,642 6,189 12,362
Non-competition
agreements............. 3,594 2,783 2,026
Other................... 11,883 10,758 7,828
-------- -------- --------
$841,501 $728,202 $662,662
======== ======== ========
</TABLE>
Amortization expense related to intangible and other assets totaled $35.2
million, $104.4 million and $124.3 million for the years ended December 31,
1995, 1996 and 1997, respectively.
Subscriber lists, Federal Communications Commission ("FCC") licenses and
goodwill are amortized over their estimated useful lives, ranging from five to
ten years using the straight-line method. Non-competition agreements are
amortized over the terms of the agreements using the straight-line method.
Other assets consist of contract rights, organizational and FCC application
and development costs which are amortized using the straight-line method over
their estimated useful lives not exceeding ten years. Development and start up
costs include nonrecurring, direct costs incurred in the development and
expansion of paging systems, and are amortized over a two-year period.
Deferred financing costs incurred in connection with Arch's credit
agreements (see Note 3) are being amortized over periods not to exceed the
terms of the related agreements. As credit agreements are amended or
renegotiated, unamortized deferred financing costs are written-off as an
extraordinary charge. During 1995, 1996 and the nine months ended September
30, 1998, charges of $1.7 million, $1.9 million and $1.7 million,
respectively, were recognized in connection with the closing of new credit
facilities.
On November 8, 1994, CONXUS Communications, Inc. ("CONXUS"), formerly PCS
Development Corporation, was successful in acquiring the rights to a two-way
paging license in five designated regions in the United States in the FCC
narrowband wireless spectrum auction. As of December 31, 1997, Arch's
investment in CONXUS totaled $6.5 million representing an equity interest of
10.5% accounted for under the cost method.
In connection with Arch's May 1996 acquisition of Westlink Holdings, Inc.
("Westlink") (see Note 2), Arch acquired Westlink's 49.9% share of the capital
stock of Benbow PCS Ventures, Inc. ("Benbow"). Benbow has exclusive rights to
a 50kHz outbound/12.5kHz inbound narrowband personal communications license in
each of the central and western regions of the United States. Arch is
obligated, to the extent such funds are not available to Benbow from other
sources and subject to the approval of Arch's designee on Benbow's Board of
Directors, to advance Benbow sufficient funds to service debt obligations
incurred by Benbow in connection with its acquisition of its narrowband PCS
licenses and to finance the build out of a regional narrowband PCS system.
Arch's investment in Benbow is accounted for under the equity method whereby
Arch's share of Benbow's losses since the acquisition date of Westlink are
recognized in Arch's accompanying consolidated statements of operations under
the caption equity in loss of affiliate.
F-8
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In accordance with Statement of Financial Accounting Standards ("SFAS") No.
121 "Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets
to Be Disposed Of" Arch evaluates the recoverability of its carrying value of
the Company's long-lived assets and certain intangible assets based on
estimated undiscounted cash flows to be generated from each of such assets as
compared to the original estimates used in measuring the assets. To the extent
impairment is identified, Arch reduces the carrying value of such impaired
assets. To date, Arch has not had any such impairments.
Fair Value of Financial Instruments--Arch's financial instruments, as
defined under SFAS No. 107 "Disclosures about Fair Value of Financial
Instruments", include its cash, its debt financing and interest rate
protection agreements. The fair value of cash is equal to the carrying value
at December 31, 1996 and 1997.
As discussed in Note 3, Arch's debt financing primarily consists of (1)
senior bank debt, (2) fixed rate senior notes and (3) convertible subordinated
debentures. Arch considers the fair value of senior bank debt to be equal to
the carrying value since the related facilities bear a current market rate of
interest. Arch's fixed rate senior notes are traded publicly. The following
table depicts the fair value of the fixed rate senior notes and the
convertible subordinated debentures based on the current market quote as of
December 31, 1996 and 1997 (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, 1996 DECEMBER 31, 1997
----------------- -----------------
CARRYING FAIR CARRYING FAIR
DESCRIPTION VALUE VALUE VALUE VALUE
----------- -------- -------- -------- --------
<S> <C> <C> <C> <C>
10 7/8% Senior Discount Notes due
2008................................. $299,273 $265,236 $332,532 $288,418
9 1/2% Senior Notes due 2004.......... 125,000 117,500 125,000 122,488
14% Senior Notes due 2004............. 100,000 115,000 100,000 112,540
6 3/4% Convertible Subordinated Deben-
tures due 2003....................... 13,364 12,211 13,364 7,968
</TABLE>
Arch had off balance sheet interest rate protection agreements consisting of
interest rate swaps and interest rate caps with notional amounts of $165.0
million and $55.0 million, respectively, at December 31, 1996 and $140.0
million and $80.0 million, respectively, at December 31, 1997. The fair values
of the interest rate swaps and interest rate caps were $361,000 and $10,000,
respectively, at December 31, 1996 and $47,000 and $9,000, respectively, at
December 31, 1997. See Note 3.
Basic/Diluted Net Income (Loss) Per Common Share -- In February 1997, the
Financial Accounting Standards Board issued SFAS No. 128 "Earnings Per Share".
The Company adopted this standard in 1997. The adoption of this standard did
not have an effect on the Company's financial position, results of operations
or income (loss) per share. Basic net income (loss) per common share is based
on the weighted average number of common shares outstanding. Shares of stock
issuable pursuant to stock options and upon conversion of the subordinated
debentures (see Note 3) or the Series C Preferred Stock (see Note 4) have not
been considered, as their effect would be anti-dilutive and thus diluted net
income (loss) per common share is the same as basic net income (loss) per
common share.
Reclassifications--Certain amounts of prior periods were reclassified to
conform with the 1997 presentation.
2. ACQUISITIONS
In May 1996, Arch completed its acquisition of all the outstanding capital
stock of Westlink for $325.4 million in cash, including direct transaction
costs. The purchase price was allocated based on the fair values of assets
acquired and liabilities assumed (including deferred income taxes arising in
purchase accounting), which amounted to $383.6 million and $58.2 million,
respectively.
F-9
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
On September 7, 1995, Arch completed its acquisition of USA Mobile
Communications Holdings, Inc. ("USA Mobile"). The acquisition was completed in
two steps. First, in May 1995, Arch acquired approximately 37%, or 5,450,000
shares, of USA Mobile's then outstanding common stock for $83.9 million in
cash, funded by borrowings under the Arch Enterprises Credit Facility (see
Note 3). Accordingly, Arch accounted for its investment in USA Mobile under
the equity method of accounting. Arch recorded a charge of $4.0 million for
the year ended December 31, 1995 representing its pro rata share of USA
Mobile's net loss from May until the acquisition was completed. Second, on
September 7, 1995, the acquisition was completed through the merger of Arch
with and into USA Mobile ("the USAM Merger"). Upon consummation of the USAM
Merger, USA Mobile was renamed Arch Communications Group, Inc. In the USAM
Merger, each share of USA Mobile's outstanding common stock was exchanged for
Arch common stock on a .8020-for-one basis (an aggregate of 7,599,493 shares
of Arch common stock) and the 5,450,000 USA Mobile shares purchased by Arch in
May 1995 were retired. Outstanding shares of USA Mobile's Series A Redeemable
Preferred Stock were not affected by the USAM Merger (see Note 4). Arch is
treated as the acquirer in the USAM Merger for accounting and financial
reporting purposes and the purchase price was allocated based upon the fair
market values of assets acquired and liabilities assumed. The aggregate
consideration paid or exchanged in the USAM Merger was $582.2 million,
consisting of cash paid of $88.9 million, including direct transaction costs,
7,599,493 shares of Arch common stock valued at $209.0 million and the
assumption of liabilities of $284.3 million, including $241.2 million of long-
term debt.
During the year ended December 31, 1995, Arch completed five acquisitions of
paging companies, in addition to the USAM Merger, for purchase prices
aggregating approximately $43.0 million, consisting of cash of $36.1 million
and 395,000 shares of Arch common stock valued at $6.9 million. Goodwill
resulting from the acquisitions and the USAM Merger is being amortized over a
ten-year period using the straight-line method.
These acquisitions (including the USAM Merger) have been accounted for as
purchases, and the results of their operations have been included in the
consolidated financial statements from the dates of the respective
acquisitions. The following unaudited pro forma summary presents the
consolidated results of operations as if the acquisitions had occurred at the
beginning of the periods presented, after giving effect to certain
adjustments, including depreciation and amortization of acquired assets and
interest expense on acquisition debt. These pro forma results have been
prepared for comparative purposes only and do not purport to be indicative of
what would have occurred had the acquisitions been made at the beginning of
the period presented, or of results that may occur in the future.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-------------------
1995 1996
-------- ---------
(UNAUDITED AND IN
THOUSANDS EXCEPT
FOR PER SHARE
AMOUNTS)
<S> <C> <C>
Revenues............................................ $321,963 $ 358,900
Income (loss) before extraordinary item............. (92,395) (128,444)
Net income (loss)................................... (94,079) (130,348)
Basic/diluted net income (loss) per common share.... (6.97) (6.39)
</TABLE>
F-10
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
3. LONG-TERM DEBT
Long-term debt consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
----------------- SEPTEMBER 30,
1996 1997 1998
-------- -------- -------------
(UNAUDITED)
<S> <C> <C> <C>
Senior Bank Debt........................... $380,500 $422,500 $267,000
10 7/8% Senior Discount Notes due 2008..... 299,273 332,532 359,892
9 1/2% Senior Notes due 2004............... 125,000 125,000 125,000
14% Senior Notes due 2004.................. 100,000 100,000 100,000
12 3/4% Senior Notes due 2007.............. -- -- 127,534
Convertible Subordinated Debentures........ 13,364 13,364 13,364
Other...................................... 59 13 --
-------- -------- --------
918,196 993,409 992,790
Less-current maturities.................... 46 24,513 --
-------- -------- --------
Long-term debt............................. $918,150 $968,896 $992,790
======== ======== ========
</TABLE>
Senior Bank Debt--The Company, through its operating subsidiaries, entered
into two credit agreements. Arch Communications Enterprise, Inc. ("ACE")
entered into a credit facility dated May 5, 1995, as amended, with a group of
banks and financial institutions who agreed, subject to certain terms and
conditions, to provide (i) a $250 million, seven-year reducing revolver
facility (the "ACE Revolver"), (ii) a $150 million, seven-year term loan (the
"Tranche A Term Loan"), and (iii) a $100 million, eight-year term loan (the
"Tranche B Term Loan"). The ACE Revolver, which was available for working
capital and other purposes, the Tranche A Term Loan and the Tranche B Term
Loan are collectively referred to as the ACE Credit Facility. The ACE Credit
Facility is secured by all assets of the operating subsidiaries of ACE and a
pledge of all the stock of Arch's direct and indirect subsidiaries. In
addition, Arch and the operating subsidiaries of ACE guaranteed all
obligations under the ACE Credit Facility.
The ACE Revolver was subject to scheduled mandatory reductions commencing on
December 31, 1999. The Tranche A Term Loan and Tranche B Term Loan were to be
amortized in quarterly installments commencing on March 31, 1998.
Except for the Tranche B Term Loan, borrowings under the ACE Credit Facility
bear interest based on a reference rate equal to either (i) the agent bank's
Alternate Base Rate, or (ii) the agent bank's LIBOR rate, in each case plus a
margin which is based on the ratio of total debt to annualized operating cash
flow. Borrowings under the Tranche B Term Loan bear interest at either the
agent bank's Alternate Base Rate or LIBOR rate, in each case plus a margin
based on the ratio of total debt to annualized EBITDA. Interest is payable
quarterly in arrears. In addition, an annual commitment fee is payable based
on the average daily unused portion of the ACE Revolver.
ACE is also required to maintain interest rate protection on at least 50% of
outstanding borrowings under the ACE Credit Facility, and has therefore
entered into interest rate swap and interest rate cap agreements. Entering
into interest rate cap and swap agreements involves both the credit risk of
dealing with counterparties and their ability to meet the terms of the
contracts and interest rate risk. In the event of non-performance by the
counterparty to these interest rate protection agreements, ACE would be
subject to the prevailing interest rates specified in the ACE Credit Facility.
F-11
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Under the interest rate swap agreements, the Company will pay the difference
between LIBOR and the fixed swap rate if the swap rate exceeds LIBOR, and the
Company will receive the difference between LIBOR and the fixed swap rate if
LIBOR exceeds the swap rate. Settlement occurs on the quarterly reset dates
specified by the terms of the contracts. The notional principal amount of the
interest rate swaps outstanding was $140 million at December 31, 1997. The
weighted average fixed payment rate was 5.818% while the weighted average rate
of variable interest payments under the ACE Credit Facility was 5.872% at
December 31, 1997. At December 31, 1996 and 1997, the Company had a net
payable of $124,000 and a net receivable of $18,000, respectively, on the
interest rate swaps.
The interest rate cap agreements will pay the Company the difference between
LIBOR and the cap level if LIBOR exceeds the cap levels at any of the
quarterly reset dates. If LIBOR remains below the cap level, no payment is
made to the Company. The total notional amount of the interest rate cap
agreements was $80 million with cap levels between 7.5% and 8% at December 31,
1997. The transaction fees for these instruments are being amortized over the
terms of the agreements.
The ACE Credit Facility contains restrictive and financial covenants which,
among other things, limit the ability of ACE to: incur additional
indebtedness, advance funds to Benbow (see Note 1), pay dividends, grant liens
on its assets, merge, sell or acquire assets; repurchase or redeem capital
stock; incur capital expenditures; and prepay indebtedness other than
indebtedness under the ACE Credit Facility. As of December 31, 1997, ACE and
its operating subsidiaries were in compliance with the covenants of the ACE
Credit Facility.
As of December 31, 1997, $359.5 million was outstanding and $28.7 million
was available under the ACE Credit Facility. At December 31, 1997, such
advances bore interest at an average annual rate of 8.76%.
USA Mobile Communications, Inc. II ("USAM") and the direct subsidiaries of
USAM (the "USAM Borrowing Subsidiaries") are parties to a $110 million
reducing revolving credit facility dated March 19, 1997, as amended, with a
group of banks pursuant to which the banks have agreed to make advances for
working capital and other purposes (the "USAM Credit Facility").
Upon the closing of the USAM Credit Facility, the banks did not require the
contemporaneous grant of a security interest in the assets of USAM and its
subsidiaries but they have reserved the right to require such a security
interest upon the occurrence of certain triggering events. Arch and USAM have
guaranteed the obligations of the USAM Borrowing Subsidiaries under the USAM
Credit Facility. Arch's guarantee is secured by the pledge of the stock of ACE
and USAM.
Obligations under the USAM Credit Facility bear interest based on a
reference rate equal to either (i) the agent bank's Alternate Base Rate or
(ii) the agent bank's LIBOR rate, in each case plus a margin based on the
ratio of USAM's total indebtedness to annualized operating cash flow. The
annual commitment fee is payable based on the average daily unused portion of
the USAM Credit Facility.
The USAM Credit Facility contains restrictive and financial covenants which,
among other things, limit the ability of USAM to: incur additional
indebtedness, pay dividends, grant liens on its assets, merge, sell or acquire
assets; repurchase or redeem capital stock; incur capital expenditures; and
prepay indebtedness other than indebtedness under the USAM Credit Facility. As
of December 31, 1997, USAM and the USAM Borrowing Subsidiaries were in
compliance with the covenants of the USAM Credit Facility.
As of December 31, 1997, $63.0 million was outstanding and $4.6 million was
available under the USAM Credit Facility. At December 31, 1997, such advances
bore interest at an average annual rate of 8.55%.
F-12
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
On June 29, 1998, ACE was merged (the "ACI Merger") into a subsidiary of
USAM named Arch Paging, Inc. ("API"). In connection with the Merger, USAM
changed its name to Arch Communications, Inc. ("ACI"). Contemporaneously with
the ACI Merger, ACE's existing credit facility was amended and restated to
establish senior secured revolving credit and term loan facilities with API,
as borrower, in the aggregate amount of $400.0 million (collectively, the "API
Credit Facility") consisting of (i) a $175.0 million reducing revolving credit
facility (the "Tranche A Facility"), (ii) a $100.0 million 364-day revolving
credit facility under which the principal amount outstanding on the 364th day
following the closing will convert to a term loan (the "Tranche B Facility")
and (iii) a $125.0 million term loan which was available in a single drawing
on the closing date (the "Tranche C Facility").
The Tranche A Facility will be subject to scheduled quarterly reductions
commencing on September 30, 2000 and will mature on June 30, 2005. The term
loan portion of the Tranche B Facility will be amortized in quarterly
installments commencing September 30, 2000, with an ultimate maturity date of
June 30, 2005. The Tranche C Facility will be amortized in annual installments
commencing December 31, 1999, with an ultimate maturity date of June 30, 2006.
API's obligations under the API Credit Facility are secured by its pledge of
the capital stock of the former ACE operating subsidiaries. The API Credit
Facility is guaranteed by Arch, ACI and the former ACE operating subsidiaries.
Arch's guarantee is secured by a pledge of Arch's stock and notes in ACI, and
the guarantees of the former ACE operating subsidiaries are secured by a
security interest in those assets of such subsidiaries which were pledged
under ACE's former credit facility.
Borrowings under the API Credit Facility bear interest based on a reference
rate equal to either the Bank's Alternate Base Rate or LIBOR rate, in each
case plus a margin based on ACI's or API's ratio of total debt to annualized
EBITDA.
The API Credit Facility requires payment of fees on the daily average amount
available to be borrowed under the Tranche A Facility and the Tranche B
Facility, which fees vary depending on ACI's or API's ratio of total debt to
annualized EBITDA.
The API Credit Facility contains restrictions that limit, among other
things: additional indebtedness and encumbrances on assets; cash dividends and
other distributions; mergers and sales of assets; the repurchase or redemption
of capital stock; investments; acquisitions that exceed certain dollar
limitations without the lenders' prior approval; and prepayment of
indebtedness other than indebtedness under the API Credit Facility. In
addition, the API Credit Facility requires API and its subsidiaries to meet
certain financial covenants, including covenants with respect to ratios of
EBITDA to fixed charges, EBITDA to debt service, EBITDA to interest service
and total indebtedness to EBITDA.
Senior Notes--On March 12, 1996, Arch completed a public offering of 10 7/8%
Senior Discount Notes due 2008 (the "Senior Discount Notes") in the aggregate
principal amount at maturity of $467.4 million ($275.0 million initial
accreted value). Interest does not accrue on the Senior Discount Notes prior
to March 15, 2001. Commencing September 15, 2001, interest on the Senior
Discount Notes is payable semi-annually at an annual rate of 10 7/8%. The
$266.1 million net proceeds from the issuance of the Senior Discount Notes,
after deducting underwriting discounts and commissions and offering expenses,
were used principally to fund a portion of the purchase price of Arch's
acquisition of Westlink (see Note 2).
Interest on the ACI 14% Notes and the ACI 9 1/2% Notes (collectively, the
"Senior Notes") is payable semiannually. The Senior Discount Notes and Senior
Notes contain certain restrictive and financial covenants which, among other
things, limit the ability of Arch or ACI to: incur additional indebtedness;
pay dividends;
F-13
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
grant liens on its assets; sell assets; enter into transactions with related
parties; merge, consolidate or transfer substantially all of its assets;
redeem capital stock or subordinated debt; and make certain investments.
On June 29, 1998, ACI issued and sold $130.0 million principal amount of 12
3/4% Senior Notes due 2007 (the "Notes") for net proceeds of $122.6 million
(after deducting the discount to the Initial Purchasers and estimated offering
expenses payable by ACI) in a private placement (the "Note Offering") under
Rule 144A under the Securities Act of 1933. The Notes were sold at an initial
price to investors of 98.049%. The Notes mature on July 1, 2007 and bear
interest at a rate of 12 3/4% per annum, payable semi-annually in arrears on
January 1 and July 1 of each year, commencing January 1, 1999.
The covenants in the indenture under which the 12 3/4% Notes were issued
("the Indenture") contain certain covenants that, among other things, limit
the ability of ACI to incur additional indebtedness, issue preferred stock,
pay dividends or make other distributions, repurchase Capital Stock (as
defined in the Indenture), repay subordinated indebtedness or make other
Restricted Payments (as defined in the Indenture), create certain liens, enter
into certain transactions with affiliates, sell assets, issue or sell Capital
Stock of ACI's Restricted Subsidiaries (as defined in the Indenture) or enter
into certain mergers and consolidations.
Convertible Subordinated Debentures--On March 6, 1996, the holders of $14.1
million principal amount of Arch's 6 3/4% Convertible Subordinated Debentures
due 2003 ("Arch Convertible Debentures") elected to convert their Arch
Convertible Debentures into Arch common stock at a conversion price of $16.75
per share and received approximately 843,000 shares of Arch common stock
together with a $1.6 million cash premium.
Interest on the remaining outstanding Arch Convertible Debentures is payable
semiannually on June 1 and December 1. The Arch Convertible Debentures are
unsecured and are subordinated to all existing indebtedness of Arch.
The Arch Convertible Debentures are redeemable, at the option of Arch, in
whole or in part, at certain prices declining annually to 100% of the
principal amount at maturity plus accrued interest. The Arch Convertible
Debentures also are subject to redemption at the option of the holders, at a
price of 100% of the principal amount plus accrued interest, upon the
occurrence of certain events.
The Arch Convertible Debentures are convertible at their principal amount
into shares of Arch's common stock at any time prior to redemption or maturity
at an initial conversion price of $16.75 per share, subject to adjustment.
Maturities of Debt--Scheduled long-term debt maturities at December 31, 1997
and at September 30, 1998, are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30,
YEAR ENDING DECEMBER 31, 1997 1998
------------------------ ------------ -------------
(UNAUDITED)
<S> <C> <C>
1998......................... $ 24,513 $ --
1999......................... 37,750 1,250
2000......................... 83,000 15,450
2001......................... 74,750 29,650
2002......................... 122,500 29,650
Thereafter................... 650,896 916,790
-------- --------
$993,409 $992,790
======== ========
</TABLE>
F-14
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
4. REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY
Redeemable Preferred Stock--In connection with the USAM Merger (see Note 2),
Arch assumed the obligations associated with 22,530 outstanding shares of
Series A Redeemable Preferred Stock issued by USA Mobile. The preferred stock
is recorded at its accreted redemption value, based on 10% annual accretion
through the redemption date. On January 30, 1997, all outstanding preferred
stock was redeemed for $3.7 million in cash.
Redeemable Series C Cumulative Convertible Preferred Stock--On June 29,
1998, two partnerships managed by Sandler Capital Management Company, Inc., an
investment management firm ("Sandler"), together with certain other private
investors, made an equity investment in Arch of $25.0 million in the form of
Series C Convertible Preferred Stock of Arch ("Series C Preferred Stock"). The
Series C Preferred Stock: (i) is convertible into Common Stock of Arch at an
initial conversion price of $5.50 per share, subject to certain adjustments;
(ii) bears dividends at an annual rate of 8.0%, (A) payable quarterly in cash
or, at Arch's option, through the issuance of shares of Arch's Common Stock
valued at 95% of the then prevailing market price or (B) if not paid
quarterly, accumulating and payable upon redemption or conversion of the
Series C Preferred Stock or liquidation of Arch; (iii) permits the holders
after seven years to require Arch, at Arch's option, to redeem the Series C
Preferred Stock for cash or convert such shares into Arch's Common Stock
valued at 95% of the then prevailing market price of Arch's Common Stock; (iv)
is subject to redemption for cash or conversion into Arch's Common Stock at
Arch's option in certain circumstances; (v) in the event of a "Change of
Control" as defined in the indenture governing Arch's 10 7/8% Senior Discount
Notes due 2008 (the "Arch Discount Notes Indenture"), requires Arch, at its
option, to redeem the Series C Preferred Stock for cash or convert such shares
into Arch's Common Stock valued at 95% of the then prevailing market price of
Arch's Common Stock, with such cash redemption or conversion being at a price
equal to 105% of the sum of the original purchase price plus accumulated
dividends; (vi) limits certain mergers or asset sales by Arch; (vii) so long
as at least 50% of the Series C Preferred Stock remains outstanding, limits
the incurrence of indebtedness and "restricted payments" in the same manner as
contained in the Arch Discount Notes Indenture; and (viii) has certain voting
and preemptive rights. Upon an event of redemption or conversion, Arch
currently intends to convert such Series C Preferred Stock into shares of Arch
Common Stock.
Stock Options--Arch has a 1989 Stock Option Plan (the "1989 Plan") and a
1997 Stock Option Plan (the "1997 Plan") which provide for the grant of
incentive and nonqualified stock options to key employees, directors and
consultants to purchase Arch's common stock. Incentive stock options are
granted at exercise prices not less than the fair market value on the date of
grant. Options generally vest over a five-year period from the date of grant
with the first such vesting (20% of granted options) occurring one year from
the date of grant and continuing ratably at 5% on a quarterly basis
thereafter. However, in certain circumstances, options may be immediately
exercised in full. Options generally have a duration of 10 years. The 1989
Plan provides for the granting of options to purchase a total of 1,128,944
shares of common stock. All outstanding options on September 7, 1995, under
the 1989 Plan, became fully exercisable and vested as a result of the USAM
Merger. The 1997 Plan provides for the granting of options to purchase a total
of 1,500,000 shares of common stock.
Effective October 23, 1996, the Compensation Committee of the Board of
Directors of Arch authorized the grant of new options to each employee who had
an outstanding option at a price greater than $12.50 (the fair market value of
Arch's common stock on October 23, 1996). The new option would be for the
total number of shares (both vested and unvested) subject to each employee's
outstanding stock option agreement(s). As a result of this action 424,206
options were terminated and regranted at a price of $12.50. The Company
treated this as a cancellation and reissuance under APB opinion No. 25
"Accounting for Stock Issued to Employees".
As a result of the USAM Merger, Arch assumed a stock option plan originally
adopted by USA Mobile in 1994 and amended and restated on January 26, 1995
(the "1994 Plan"), which provides for the grant of up to 601,500 options to
purchase Arch's common stock. Under the 1994 Plan, incentive stock options may
be granted
F-15
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
to employees and nonqualified stock options may be granted to employees,
directors and consultants. Incentive stock options are granted at exercise
prices not less than the fair market value on the date of grant. Option
duration and vesting provisions are similar to the 1989 Plan. All outstanding
options under the 1994 Plan became fully exercisable and vested as a result of
the USAM Merger.
In January 1995, Arch adopted a 1995 Outside Directors' Stock Option Plan
(the "1995 Directors' Plan"), which terminated upon completion of the USAM
Merger. Prior to termination of the 1995 Directors' Plan, 15,000 options were
granted at an exercise price of $18.50 per share. Options have a duration of
ten years and vest over a five-year period from the date of grant with the
first such vesting (20% of granted options) occurring one year from the date
of grant and continuing ratably at 5% on a quarterly basis thereafter.
As a result of the USAM Merger, Arch assumed from USA Mobile the Non-
Employee Directors' Stock Option Plan (the "Outside Directors Plan"), which
provides for the grant of up to 80,200 options to purchase Arch's common stock
to non-employee directors of Arch. Outside directors receive a grant of 3,000
options annually under the Outside Directors Plan, and newly elected or
appointed outside directors receive options to purchase 3,000 shares of common
stock as of the date of their initial election or appointment. Options are
granted at fair market value of Arch's common stock on the date of grant.
Options have a duration of ten years and vest over a three-year period from
the date of grant with the first such vesting (25% of granted options)
occurring on the date of grant and future vesting of 25% of granted options
occurring on each of the first three anniversaries of the date of grant.
On December 16, 1997, the Compensation Committee of the Board of Directors
of Arch authorized the Company to offer an election to its employees who had
outstanding options at a price greater than $5.06 to cancel such options and
accept new options at a lower price. In January 1998, as a result of this
election by certain of its employees, the Company canceled 1,083,216 options
with exercise prices ranging from $5.94 to $20.63 and granted the same number
of new options with an exercise price of $5.06 per share, the fair market
value of the stock on December 16, 1997.
On December 29, 1997, Arch adopted a Deferred Compensation Plan for
Nonemployee Directors. Under this plan, outside directors may elect to defer,
for a specified period of time, receipt of some or all of the annual and
meeting fees which would otherwise be payable for service as a director. A
portion of the deferred compensation may be converted into phantom stock
units, at the election of the director. The number of phantom stock units
granted equals the amount of compensation to be deferred as phantom stock
divided by the fair value of Arch's common stock on the date the compensation
would have otherwise been paid. At the end of the deferral period, the phantom
stock units will be converted to cash based on the fair market value of the
Company's common stock on the date of distribution. Deferred compensation is
expensed when earned. Changes in the value of the phantom stock units are
recorded as income/expense based on the fair market value of the Company's
common stock.
F-16
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The following table summarizes the activity under Arch's stock option plans
for the periods presented:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
NUMBER OF EXERCISE
OPTIONS PRICE
--------- --------
<S> <C> <C>
Options Outstanding at August 31, 1994................ 602,744 $ 7.19
Granted............................................. 41,740 18.58
Exercised........................................... (2,000) 5.94
Terminated.......................................... -- --
--------- ------
Options Outstanding at December 31, 1994.............. 642,484 7.95
Granted............................................. 278,750 23.46
Assumed in USAM Merger.............................. 571,024 11.59
Exercised........................................... (475,903) 10.80
Terminated.......................................... (10,600) 17.57
--------- ------
Options Outstanding at December 31, 1995.............. 1,005,755 13.02
Granted............................................. 695,206 15.46
Exercised........................................... (169,308) 8.69
Terminated.......................................... (484,456) 21.60
--------- ------
Options Outstanding at December 31, 1996.............. 1,047,197 11.37
Granted............................................. 500,394 6.68
Exercised........................................... -- --
Terminated.......................................... (190,636) 10.58
--------- ------
Options Outstanding at December 31, 1997.............. 1,356,955 $ 9.75
========= ======
Options Exercisable at December 31, 1997.............. 639,439 $ 9.64
========= ======
</TABLE>
The following table summarizes the options outstanding and options
exercisable by price range at December 31, 1997:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
REMAINING AVERAGE AVERAGE
RANGE OF OPTIONS CONTRACTUAL EXERCISE OPTIONS EXERCISE
EXERCISE PRICES OUTSTANDING LIFE PRICE EXERCISABLE PRICE
--------------- ----------- ----------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
$ 3.13 - $ 5.94 186,284 1.58 $ 4.39 169,784 $ 4.36
6.25 - 8.25 617,654 7.45 7.09 195,010 7.77
10.29 - 14.10 410,377 8.08 12.34 209,853 12.19
15.85 - 20.63 124,640 8.10 20.12 51,292 19.66
23.50 - 27.56 18,000 7.84 25.53 13,500 25.53
--------------- --------- ---- ------ ------- ------
$ 3.13 - $27.56 1,356,955 6.90 $ 9.75 639,439 $ 9.64
=============== ========= ==== ====== ======= ======
</TABLE>
Employee Stock Purchase Plan--On May 28, 1996, the stockholders approved the
1996 Employee Stock Purchase Plan (ESPP). The ESPP allows eligible employees
the right to purchase common stock, through payroll deductions not exceeding
10% of their compensation, at the lower of 85% of the market price at the
beginning or the end of each six-month offering period. During 1996 and 1997,
46,842 and 151,343 shares were issued at an average price per share of $7.97
and $5.29, respectively. At December 31, 1997, 51,815 shares are available for
future issuance. On May 19, 1998, the stockholders approved an amendment to
the plan to increase the number of shares available for future issuance by
250,000.
Accounting for Stock-Based Compensation--Arch accounts for its stock option
and stock purchase plans under APB Opinion No. 25 "Accounting for Stock Issued
to Employees". Since all options have been issued at
F-17
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
a grant price equal to fair market value, no compensation cost has been
recognized in the Statement of Operations. Had compensation cost for these
plans been determined consistent with SFAS No. 123 "Accounting for Stock-Based
Compensation", Arch's net income (loss) and income (loss) per share would have
been increased to the following pro forma amounts:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------
1995 1996 1997
-------- --------- ---------
(IN THOUSANDS, EXCEPT PER
SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Net income (loss): As reported $(36,602) $(114,662) $(181,874)
Pro forma (36,740) (115,786) (183,470)
Basic net income (loss) per
common share: As reported (2.72) (5.62) (8.77)
Pro forma (2.73) (5.68) (8.85)
</TABLE>
Because the SFAS No. 123 method of accounting has not been applied to the
options granted prior to January 1, 1995, the resulting pro forma compensation
cost may not be representative of that to be expected in future years. The
fair value of each option grant is estimated on the date of grant using the
Black-Scholes option pricing model. In computing these pro forma amounts, Arch
has assumed a risk-free interest rate of 6%, an expected life of 5 years, an
expected dividend yield of zero and an expected volatility of 50% - 60%.
The weighted average fair values (computed consistent with SFAS No. 123) of
options granted under all plans in 1995, 1996 and 1997 were $11.89, $4.95 and
$3.37, respectively. The weighted average fair value of shares sold under the
ESPP in 1996 and 1997 was $5.46 and $2.83, respectively.
Stockholders Rights Plan--Upon completion of the USAM Merger, Arch's
existing stockholders rights plan was terminated. In October 1995, Arch's
Board of Directors adopted a new stockholders rights plan (the "Rights") and
declared a dividend of one preferred stock purchase right (a "Right") for each
outstanding share of common stock to stockholders of record at the close of
business on October 25, 1995. Each Right entitles the registered holder to
purchase from Arch one one-thousandth of a share of Series B Junior
Participating Preferred Stock, at a cash purchase price of $150, subject to
adjustment. Pursuant to the Plan, the Rights automatically attach to and trade
together with each share of common stock. The Rights will not be exercisable
or transferable separately from the shares of common stock to which they are
attached until the occurrence of certain events. The Rights will expire on
October 25, 2005, unless earlier redeemed or exchanged by Arch in accordance
with the Plan.
5. INCOME TAXES
Arch accounts for income taxes under the provisions of SFAS No. 109
"Accounting for Income Taxes". Deferred tax assets and liabilities are
determined based on the difference between the financial statement and tax
bases of assets and liabilities given the provisions of enacted laws.
The components of the net deferred tax asset (liability) recognized in the
accompanying consolidated balance sheets at December 31, 1996 and 1997 are as
follows (in thousands):
<TABLE>
<CAPTION>
1996 1997
-------- --------
<S> <C> <C>
Deferred tax assets.................................. $ 94,597 $134,944
Deferred tax liabilities............................. (115,769) (90,122)
-------- --------
(21,172) 44,822
Valuation allowance.................................. -- (44,822)
-------- --------
$(21,172) $ --
======== ========
</TABLE>
F-18
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
The approximate effect of each type of temporary difference and carryforward
at December 31, 1996 and 1997 is summarized as follows (in thousands):
<TABLE>
<CAPTION>
1996 1997
--------- --------
<S> <C> <C>
Net operating losses................................ $ 89,764 $106,214
Intangibles and other assets........................ (115,769) (87,444)
Depreciation of property & equipment................ 3,692 24,388
Accruals and reserves............................... 1,141 1,664
--------- --------
(21,172) 44,822
Valuation allowance................................. -- (44,822)
--------- --------
$(21,172) $ --
========= ========
</TABLE>
The effective income tax rate differs from the statutory federal tax rate
primarily due to the nondeductibility of goodwill amortization. The net
operating loss (NOL) carryforwards expire at various dates through 2012. The
Internal Revenue Code contains provisions that may limit the NOL carryforwards
available to be used in any given year if certain events occur, including
significant changes in ownership, as defined.
The Company has established a valuation reserve against its net deferred tax
asset until it becomes more likely than not that this asset will be realized
in the foreseeable future.
6. COMMITMENTS AND CONTINGENCIES
In the ordinary course of business, the Company and its subsidiaries are
defendants in a variety of judicial proceedings. In the opinion of management,
there is no proceeding pending, or to the knowledge of management threatened,
which in the event of an adverse decision, would result in a material adverse
change in the financial condition of the Company.
Arch has operating leases for office and transmitting sites with lease terms
ranging from one month to approximately ten years. In most cases, Arch expects
that, in the normal course of business, leases will be renewed or replaced by
other leases.
Future minimum lease payments under noncancellable operating leases at
December 31, 1997 are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31,
------------------------
<S> <C>
1998............................. $16,909
1999............................. 7,706
2000............................. 4,546
2001............................. 2,689
2002............................. 950
Thereafter....................... 1,680
-------
Total.......................... $34,480
=======
</TABLE>
Total rent expense under operating leases for the years ended December 31,
1995, 1996 and 1997 approximated $6.4 million, $14.7 million, and $19.8
million, respectively.
F-19
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
7. EMPLOYEE BENEFIT PLANS
Retirement Savings Plan--Arch has a retirement savings plan, qualifying
under Section 401(k) of the Internal Revenue Code covering eligible employees,
as defined. Under the plan, a participant may elect to defer receipt of a
stated percentage of the compensation which would otherwise be payable to the
participant for any plan year (the deferred amount) provided, however, that
the deferred amount shall not exceed the maximum amount permitted under
Section 401(k) of the Internal Revenue Code. The plan provides for employer
matching contributions. Matching contributions for the years ended December
31, 1995, 1996 and 1997 approximated $124,000, $217,000 and $302,000,
respectively.
8. TOWER SITE SALE (UNAUDITED)
In April 1998, Arch announced an agreement to sell certain of its tower site
assets (the "Tower Site Sale") for approximately $38.0 million in cash
(subject to adjustment), of which $1.3 million was paid to entities affiliated
with Benbow in payment for certain assets owned by such entities and included
in the Tower Site Sale. In the Tower Site Sale, Arch is selling communications
towers, real estate, site management contracts and/or leasehold interests
involving 133 sites in 22 states and will rent space on the towers on which it
currently operates communications equipment to service its own paging network.
Arch will use its net proceeds from the Tower Site Sale (estimated to be $36.0
million) to repay indebtedness under the API Credit Facility. Arch held the
initial closing of the Tower Site Sale on June 26, 1998 with gross proceeds to
Arch of approximately $12.0 million (excluding $1.3 million which was paid to
entities affiliated with Benbow for certain assets which such entities sold as
part of this transaction) and held a second closing on September 29, 1998 with
gross proceeds to Arch of approximately $20.4 million. The final closing for
the balance of the transaction is expected to be completed in the fourth
quarter of 1998, although no assurance can be given that the final closing
will be held as expected.
Arch entered into options to repurchase each site and until this continuing
involvement ends the gain is deferred and included in other long-term
liabilities. At September 30, 1998, Arch had sold 117 of the 133 sites which
resulted in a total gain of approximately $23.5 million and through September
30, 1998 approximately $1.5 million of this gain had been recognized in the
statement of operations and is included in operating income.
9. DIVISIONAL REORGANIZATION (UNAUDITED)
In June 1998, Arch's Board of Directors approved a reorganization of Arch's
operations (the "Divisional Reorganization"). As part of the Divisional
Reorganization, which is being implemented over a period of 18 to 24 months,
Arch has consolidated its former Midwest, Western and Northern divisions into
four existing operating divisions and is in the process of consolidating
certain regional administrative support functions, such as customer service,
collections, inventory and billing, to reduce redundancy and take advantage of
various operating efficiencies. In connection with the Divisional
Reorganization, Arch (i) anticipates a net reduction of approximately 10% of
its workforce, (ii) plans to close certain office locations and redeploy other
assets and (iii) has recorded a restructuring charge of $16.1 million, or
$0.77 per share (basic and diluted) in the second quarter of 1998. The
restructuring charge consisted of approximately (i) $9.7 million for employee
severance, (ii) $3.5 million for lease obligations and terminations, (iii)
$1.4 million for the writedown of fixed assets and (iv) $1.5 million of other
costs.
The provision for lease obligations and terminations relates primarily to
future lease commitments on local, regional and divisional office facilities
that will be closed as part of the Divisional Reorganization. The charge
represents future lease obligations, on such leases past the dates the offices
will be closed by the Company, or for certain leases, the cost of terminating
the leases prior to their scheduled expiration. Cash payments on the leases
and lease terminations will occur over the remaining lease terms, the majority
of which expire prior to 2001.
F-20
<PAGE>
ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Through the elimination of certain local and regional administrative
operations and the consolidation of certain support functions, the Company
will eliminate approximately 280 net positions. As a result of eliminating
these positions, the Company will involuntarily terminate an estimated 900
personnel. The majority of the positions to be eliminated will be related to
customer service, collections, inventory and billing functions in local and
regional offices which will be closed as a result of the Divisional
Reorganization. As of September 30, 1998, 114 employees had been terminated
due to the Divisional Reorganization. The majority of the severance and
benefits costs to be paid by the Company will be paid during the remainder of
1998 and in 1999.
The Company's restructuring activity as of September 30, 1998 is as follows
(in thousands):
<TABLE>
<CAPTION>
RESERVE UTILIZATION OF RESERVE
INITIALLY --------------------------REMAINING
ESTABLISHED CASH NON-CASH RESERVE
----------- ------------ ----------------------
<S> <C> <C> <C> <C>
Severance costs........... $ 9,700 $ 1,105 $ -- $ 8,595
Lease obligation costs.... 3,500 34 -- 3,466
Write-down of fixed
assets................... 1,400 -- -- 1,400
Other costs............... 1,500 151 -- 1,349
------- ------------ ---------- -------
Total................... $16,100 $ 1,290 $ -- $14,810
======= ============ ========== =======
</TABLE>
10. QUARTERLY FINANCIAL RESULTS (UNAUDITED)
Quarterly financial information for the years ended December 31, 1996 and
1997 is summarized below (in thousands, except per share amounts):
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
<S> <C> <C> <C> <C>
YEAR ENDED DECEMBER 31, 1996:
Revenues............................ $ 67,171 $ 78,983 $ 90,886 $ 94,330
Operating income (loss)............. (12,949) (18,821) (23,647) (30,653)
Income (loss) before extraordinary
item............................... (19,377) (25,678) (32,178) (35,525)
Extraordinary charge................ -- (1,904) -- --
Net income (loss)................... (19,377) (27,582) (32,178) (35,525)
Basic net income (loss) per common
share:
Income (loss) before extraordinary
item............................. (.98) (1.26) (1.56) (1.72)
Extraordinary charge.............. -- (.09) -- --
Net income (loss)................. (.98) (1.35) (1.56) (1.72)
YEAR ENDED DECEMBER 31, 1997:
Revenues............................ $ 95,539 $ 98,729 $101,331 $101,242
Operating income (loss)............. (26,632) (29,646) (27,208) (18,529)
Net income (loss)................... (45,815) (49,390) (47,645) (39,024)
Basic net income (loss) per common
share:
Net income (loss)................. (2.21) (2.38) (2.29) (1.88)
</TABLE>
F-21
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
MobileMedia Communications, Inc.
We have audited the accompanying consolidated balance sheets of MobileMedia
Communications, Inc. and Subsidiaries ("MobileMedia") as of December 31, 1996
and 1997, and the related consolidated statements of operations, stockholders'
equity (deficit) and cash flows for each of the three years in the period
ended December 31, 1997. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of MobileMedia Communications, Inc. and Subsidiaries at December 31, 1996 and
1997 and the consolidated results of their operations and cash flows for each
of the three years in the period ended December 31, 1997 in conformity with
generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that
MobileMedia will continue as a going concern. As more fully described in Note
1, on January 30, 1997, MobileMedia Corporation and substantially all of its
subsidiaries filed voluntary petitions for reorganization under Chapter 11 of
the United States Bankruptcy Code in the United States Bankruptcy Court for
the District of Delaware (the Bankruptcy Court). Additionally, as more fully
described in Note 12, on April 8, 1997, the Federal Communications Commission
("FCC") issued a Public Notice commencing an administrative hearing into the
qualification of MobileMedia to remain a licensee, which hearing has been
stayed by the FCC until October 6, 1998. These events, and circumstances
relating to the Chapter 11 filing with the Bankruptcy Court, including
MobileMedia's highly leveraged financial structure, non-compliance with
certain covenants of loan agreements with banks and note indentures, net
working capital deficiency and recurring losses from operations, raise
substantial doubt about MobileMedia's ability to continue as a going concern.
Although MobileMedia is currently operating the business as debtors-in-
possession under the jurisdiction of the Bankruptcy Court, the continuation of
the business as a going concern is contingent upon, among other things, the
ability to (a) formulate a plan of reorganization which will gain approval of
the creditors and confirmation by the Bankruptcy Court, (b) maintain
compliance with all covenants under the debtor-in-possession financing
agreement, (c) achieve satisfactory levels of future operating profit and (d)
retain FCC qualification as a licensee. The financial statements do not
include any adjustments to reflect the possible future effects on the
recoverability and classification of assets or the amounts and classification
of liabilities that may result from the outcome of these uncertainties.
Ernst & Young LLP
MetroPark, New Jersey
July 31, 1998
F-22
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------ SEPTEMBER 30,
1996 1997 1998
----------- ----------- -------------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents............. $ 23,160 $ 10,920 $ 9,814
Accounts receivable (less allowance
for uncollectible accounts of
$56,189, $26,497 and $17,424 in
1996, 1997 and 1998, respectively)... 66,709 55,432 38,127
Inventories........................... 13,382 868 1,167
Prepaid expense....................... 1,118 5,108 6,391
Other................................. 1,583 2,783 5,399
----------- ----------- -----------
Total current assets................ 105,952 75,111 60,898
----------- ----------- -----------
Investment in net assets of equity
affiliate............................. 1,857 1,788 1,691
Property and equipment, net............ 327,757 257,937 218,873
Intangible assets, net................. 325,753 295,358 273,287
Other assets........................... 28,911 24,940 22,557
----------- ----------- -----------
Total assets........................ $ 790,230 $ 655,134 $ 577,306
=========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
(DEFICIT)
Liabilities not subject to compromise
Debtor-In-Possession (DIP) credit
facility............................. $ -- $ 10,000 $ --
Accrued restructuring costs........... -- 4,897 7,001
Accrued wages, benefits and payroll... -- 11,894 12,398
Accounts payable--post petition....... -- 2,362 2,106
Accrued interest...................... -- 4,777 4,145
Accrued expenses and other current
liabilities.......................... 6,703 35,959 36,071
Advance billing and customer
deposits............................. 37,022 34,252 31,340
Deferred gain on tower sale........... -- -- 69,611
----------- ----------- -----------
Total liabilities not subject to
compromise......................... 43,725 104,141 162,672
----------- ----------- -----------
Liabilities subject to compromise
Accrued wages, benefits and payroll
taxes................................ 9,443 562 555
Accrued interest...................... 31,443 18,450 17,601
Accounts payable--pre petition........ 45,484 19,646 12,473
Accrued expenses and other current
liabilities.......................... 48,215 20,663 20,121
Debt.................................. 1,074,196 1,075,681 905,681
Other................................. 3,460 2,915 2,822
----------- ----------- -----------
Total liabilities subject to
compromise......................... 1,212,241 1,137,917 959,253
----------- ----------- -----------
Deferred tax liabilities.............. 2,655 2,655 2,655
Stockholders' equity (deficit)
Common stock (1 share, no par value,
issued and outstanding at December
31, 1996 and 1997 and September 30,
1998)................................ -- -- --
Additional paid-in-capital............ 672,629 676,025 676,025
Accumulated deficit--pre petition..... (1,141,020) (1,154,420) (1,154,420)
Accumulated deficit--post petition.... -- (111,184) (68,879)
----------- ----------- -----------
Total stockholders' equity
(deficit).......................... (468,391) (589,579) (547,274)
----------- ----------- -----------
Total liabilities and stockholders'
equity (deficit)................... $ 790,230 $ 655,134 $ 577,306
=========== =========== ===========
</TABLE>
See accompanying notes.
F-23
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS
YEAR ENDED DECEMBER 31, ENDED SEPTEMBER 30,
----------------------------------- ---------------------
1995 1996 1997 1997 1998
--------- ------------ ---------- ---------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenue
Services, rents and
maintenance.......... $ 220,745 $ 568,892 $ 491,174 $ 378,922 $ 320,002
Product sales......... 32,251 71,818 36,218 28,235 20,367
--------- ------------ ---------- ---------- ---------
Total revenues...... 252,996 640,710 527,392 407,157 340,369
Cost of products sold... (26,885) (72,595) (35,843) (27,524) (16,531)
--------- ------------ ---------- ---------- ---------
226,111 568,115 491,549 379,633 323,838
Operating expenses
Services, rents and
maintenance.......... 59,800 144,050 139,333 110,146 83,506
Selling............... 45,203 96,817 69,544 53,816 45,848
General and
administrative....... 59,034 218,607 179,599 145,337 101,383
Impairment of long-
lived assets......... -- 792,478 -- -- --
Restructuring costs... -- 4,256 19,811 15,577 13,831
Depreciation.......... 50,399 136,434 110,376 81,988 65,919
Amortization.......... 21,009 212,264 29,862 22,380 22,393
Amortization of
deferred gain on
tower sale........... -- -- -- -- (389)
--------- ------------ ---------- ---------- ---------
Total operating
expenses........... 235,445 1,604,906 548,525 429,244 332,491
--------- ------------ ---------- ---------- ---------
Operating (loss)........ (9,334) (1,036,791) (56,976) (49,611) (8,653)
Other income (expense)
Interest expense, net
..................... (31,745) (92,663) (67,611) (51,531) (42,449)
Gain (loss) on sale of
assets............... -- 68 3 3 94,085
--------- ------------ ---------- ---------- ---------
Total other expense. (31,745) (92,595) (67,608) (51,528) 51,636
--------- ------------ ---------- ---------- ---------
Income (loss) before
income taxes (benefit). (41,079) (1,129,386) (124,584) (101,139) 42,983
Income taxes (benefit).. -- (69,442) -- -- 678
--------- ------------ ---------- ---------- ---------
Net income (loss)....... $ (41,079) $ (1,059,944) $ (124,584) $ (101,139) $ 42,305
========= ============ ========== ========== =========
</TABLE>
See accompanying notes.
F-24
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS)
<TABLE>
<CAPTION>
ACCUMULATED ACCUMULATED
ADDITIONAL DEFICIT DEFICIT
PAID IN PRE- POST-
CAPITAL PETITION PETITION TOTAL
---------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance at December 31, 1994.. $141,497 $ (39,997) $ 0 $ 101,500
Capital contribution from
MobileMedia.................. 518,332 -- -- 518,332
Net loss...................... -- (41,079) -- (41,079)
-------- ----------- --------- -----------
Balance at December 31, 1995.. 659,829 (81,076) 0 578,753
Capital contribution from
MobileMedia.................. 12,800 -- -- 12,800
Net loss...................... -- (1,059,944) -- (1,059,944)
-------- ----------- --------- -----------
Balance at December 31, 1996.. 672,629 (1,141,020) 0 (468,391)
Capital contribution from
MobileMedia.................. 3,396 -- -- 3,396
Net loss...................... -- (13,400) (111,184) (124,584)
-------- ----------- --------- -----------
Balance at December 31, 1997.. 676,025 (1,154,420) (111,184) (589,579)
Net income (unaudited)........ -- -- 42,305 42,305
-------- ----------- --------- -----------
Balance at September 30, 1998
(unaudited).................. $676,025 $(1,154,420) $ (68,879) $ (547,274)
======== =========== ========= ===========
</TABLE>
See accompanying notes.
F-25
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------- -------------------
1995 1996 1997 1997 1998
----------- ----------- --------- --------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Operating activities
Net income (loss)...... $ (41,079) $(1,059,944) $(124,584) $(101,139) $ 42,305
Adjustments to reconcile
net loss to net cash
provided by (used in)
operating activities:
Depreciation and
amortization.......... 71,408 348,698 140,238 104,368 88,312
Amortization of
deferred gain on tower
sale.................. (389)
Income tax provision
(benefit)............. -- (69,442) -- -- 678
Accretion of note
payable discount...... 15,159 16,792 1,485 1,485
Provision for
uncollectible
accounts.............. 4,259 56,556 65,181 57,965 13,011
Write-off of
unamortized debt
issuance costs........ 5,391 -- -- -- --
Recognized gain on sale
of tower assets....... -- -- -- -- (94,165)
Impairment of long-
lived assets.......... -- 792,478 -- -- --
Undistributed earnings
of affiliate, net..... (303) 160 69 (54) 97
Change in operating
assets and liabilities:
Accounts receivable.... (17,595) (55,965) (53,904) (56,888) 4,294
Inventories............ (3,353) 2,433 12,514 9,239 (299)
Prepaid expenses and
other assets.......... 133 12,145 (686) 1,555 (1,541)
Accounts payable,
accrued expenses and
other liabilities..... 9,829 13,283 (25,393) (19,378) (10,718)
----------- ----------- --------- --------- --------
Net cash provided by
(used in) operating
activities............ 43,849 57,194 14,920 (2,847) 41,585
----------- ----------- --------- --------- --------
Investing activities:
Construction and
capital expenditures,
including net changes
in pager assets....... (86,163) (161,861) (40,556) (32,321) (32,394)
Net proceeds from the
sale of tower assets.. -- -- -- -- 169,703
Investment in net
assets of equity
affiliates............ (1,641) -- -- -- --
Acquisition of
businesses............ (171,223) (866,460) -- -- --
MAP Mobile channel
exchange agreement.... (10,175) -- -- -- --
Cash paid to FCC for
PCS license........... (42,935) -- -- -- --
Other.................. (561) -- -- -- --
----------- ----------- --------- --------- --------
Net cash provided by
(used in) investing
activities............. (312,698) (1,028,321) (40,556) (32,321) 137,309
----------- ----------- --------- --------- --------
Financing activities:
Capital contribution by
MobileMedia
Corporation........... 518,332 12,800 3,396 3,396 --
Proceeds from sale of
notes, net............ 245,863 -- -- -- --
Repayment of Dial Page. (83,430) -- -- -- --
Payment of debt issue
costs................. (22,721) (6,939) -- -- --
Borrowing from
revolving credit
facilities............ 1,071,000 580,250 -- -- --
Repayments on revolving
credit facilities..... (1,057,250) -- -- -- (170,000)
Borrowing from DIP
credit facilities..... -- -- 47,000 17,000 --
Repayments on DIP
credit facilities..... -- -- (37,000) -- (10,000)
----------- ----------- --------- --------- --------
Net cash provided by
(used in) financing
activities............. 671,794 586,111 13,396 20,396 (180,000)
----------- ----------- --------- --------- --------
Net (decrease) increase
in cash, cash
equivalents designated
and cash designated for
the MobileComm
acquisition............ 402,945 (385,016) (12,240) (14,772) (1,106)
Cash and cash
equivalents at
beginning of period.... 5,231 408,176 23,160 23,160 10,920
----------- ----------- --------- --------- --------
Cash and cash
equivalents at end of
period................. $ 408,176 $ 23,160 $ 10,920 $ 8,388 $ 9,814
=========== =========== ========= ========= ========
</TABLE>
See accompanying notes.
F-26
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. CHAPTER 11 REORGANIZATION AND BASIS OF PRESENTATION
On January 30, 1997 (the "Petition date"), MobileMedia Corporation
("Parent"), its wholly owned subsidiary MobileMedia Communications, Inc., and
all seventeen of MobileMedia Communication's Inc.'s subsidiaries
("MobileMedia") (collectively with Parent and MobileMedia, the "Debtors"),
filed for protection under Chapter 11 of Title 11 of the United States Code
(the "Bankruptcy Code"). The Debtors are operating as debtors-in-possession
and are subject to the jurisdiction of the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"). Chapter 11 is the principal
business reorganization chapter of the Bankruptcy Code. Under Chapter 11 of
the Bankruptcy Code, a debtor is authorized to reorganize its business for the
benefit of its creditors and stockholders. In addition to permitting
rehabilitation of the debtor, another goal of Chapter 11 is to promote
equality of treatment of creditors and equity security holders of equal rank
with respect to the restructuring of debt. In furtherance of these two goals,
upon the filing of a petition for reorganization under Chapter 11, section
362(a) of the Bankruptcy Code generally provides for an automatic stay of
substantially all acts and proceedings against the debtor and its property,
including all attempts to collect claims or enforce liens that arose prior to
the commencement of the debtor's case under Chapter 11.
The Bankruptcy Court has exercised supervisory powers over the operations of
the Debtors with respect to the employment of attorneys, investment bankers
and other professionals, and transactions out of the Debtors' ordinary course
of business or otherwise requiring bankruptcy court approval under the
Bankruptcy Code. The Debtors have been paying undisputed obligations that have
arisen subsequent to the Petition date on a timely basis.
Since the Petition date, the Bankruptcy Court has entered orders allowing
the Debtors (i) to pay certain customer refunds and deposits in the ordinary
course of business, (ii) to pay wages, salaries and benefits owing to
employees, and (iii) to pay specified pre-petition taxes owing to various
governmental entities. On February 6, 1997, the Bankruptcy Court entered an
order authorizing the Debtors to pay approximately $46 million in pre-petition
amounts owing to certain essential vendors.
Under the Bankruptcy Code, the Debtors may elect to assume or reject real
estate leases, employment contracts, personal property leases, service
contracts and other unexpired executory pre-petition leases and contracts,
subject to Bankruptcy Court approval. Assumption of a contract requires the
Debtors, among other things, to cure all defaults under the contract,
including payment of all pre-petition liabilities. Rejection of a contract
constitutes a breach of that contract as of the moment immediately preceding
the Chapter 11 filing and the other party has the right to assert a general,
unsecured claim against the bankruptcy estate for damages arising out of such
breach. These parties may also seek to assert post-petition administrative
claims against the Debtors to the extent that the Debtors utilize the
collateral or services of such parties subsequent to the commencement of the
Chapter 11 proceedings. The Debtors cannot presently determine or reasonably
estimate the ultimate liability which may result from payments required to
cure defaults under assumed leases and contracts or from the filing of claims
for all leases and contracts which may be rejected.
In connection with the Chapter 11 filing, the Debtors notified all known
claimants that pursuant to an order of the Court, all proofs of claims, on
account of pre-petition obligations, other than for certain governmental
entities, were required to be filed by June 16, 1997 (the "Bar Date"). As of
September 30, 1998, approximately 2,400 proofs of claim have been filed
against the Debtors. Included among the claims filed are claims of unspecified
and undeterminable amounts. The Debtors consider the amounts set forth in
certain proofs of claim to be inaccurate estimates of the Debtors'
liabilities. As of September 30, 1998, the Debtors had secured orders of the
Bankruptcy Court reducing approximately 1,292 claims filed in an aggregate
amount of approximately $110.8 million to an allowed amount of $5.51 million.
The Debtors expect the objection process to continue.
F-27
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Confirmation and consummation of a plan of reorganization are the principal
objectives of a Chapter 11 reorganization case. A plan of reorganization sets
forth the means for satisfying claims against, and interests in, a debtor.
Confirmation of a plan requires, among other things, the affirmative vote of
creditors holding at least two-thirds in total dollar amount and more than
one-half in number of the allowed claims in each impaired class of claims that
have voted on the plan, and two-thirds in amount of equity interests in each
impaired class of interests that voted on the plan. Section 1129(b) of the
Bankruptcy Code--commonly referred to as the "cramdown" provision--permits
confirmation of a plan over the objection of an impaired class under certain
circumstances. Confirmation of a plan of reorganization by a bankruptcy court
makes the plan binding upon the debtor, any issuer of securities under the
plan, any person acquiring property under the plan and any creditor or equity
security holder of the debtor. Subject to certain limited exceptions, the
confirmation order discharges the debtor from any debt that arose prior to the
date of confirmation of the plan and substitutes therefore the obligations
specified under the confirmed plan.
On August 20, 1998, MobileMedia announced that it had executed a merger
agreement with Arch Communications Group, Inc. ("Arch"), pursuant to which
MobileMedia Communications, Inc. will be merged with and into a wholly-owned
subsidiary of Arch. Immediately prior to the Merger, Parent will contribute
all of its assets to MobileMedia Communications, Inc. Concurrently, Debtors
filed a First Amended Joint Plan of Reorganization that reflects the proposed
merger with Arch. (On September 3, 1998, Arch and MobileMedia executed an
amendment to the merger agreement and the Debtors filed a subsequent Second
Amended Joint Plan of Reorganization (the "Plan").) Under the Plan, Debtors'
secured creditors will receive cash in an amount equal to their allowed pre-
petition claims and Debtors' unsecured creditors will receive cash or equity
securities of Arch in satisfaction of their pre-petition claims against the
Debtors. Because there are a variety of conditions precedent to the
consummation of the Plan and the merger with Arch, there can be no assurance
that the transactions contemplated thereby will be consummated.
The consolidated financial statements at December 31, 1996 and 1997 and
September 30, 1998 (unaudited) have been prepared on a going concern basis
which assumes continuity of operations and realization of assets and
liquidation of liabilities in the ordinary course of business. As discussed
herein, there are significant uncertainties relating to the ability of
MobileMedia to continue as a going concern. The consolidated financial
statements do not include any adjustments relating to the recoverability and
classification of recorded asset amounts, or the amounts and classification of
liabilities that might be necessary as a result of the outcome of the
uncertainties discussed herein.
2. THE COMPANY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The Company
MobileMedia provides paging and wireless messaging services in the United
States, including the 100 largest metropolitan areas.
Consolidation
The consolidated financial statements include the accounts of MobileMedia
and it's wholly-owned subsidiaries (MobileMedia Communications of California,
Inc., MobileMedia Paging, Inc., MobileMedia DP Properties, Inc., Dial Page
Southeast, Inc., RadioCall Company of Virginia, Inc., MobileMedia PCS, Inc.,
Mobile Communications Corporation of America, MobileComm of Florida, Inc.,
MobileComm of Tennessee, Inc., MobileComm of the Midsouth, Inc., MobileComm
Nationwide Operations, Inc., MobileComm of the West, Inc., MobileComm of the
Northeast, Inc., MobileComm of the Southeast, Inc., MobileComm of the
Southeast Private Carrier Operations, Inc., MobileComm of the Southwest, Inc.
and FWS Radio, Inc.). All significant intercompany accounts and transactions
have been eliminated.
F-28
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Cash Equivalents
MobileMedia considers all highly-liquid securities with an original maturity
of less than three months to be cash equivalents.
Concentrations of Credit Risk
Financial instruments that potentially subject MobileMedia to concentrations
of credit risk consist principally of temporary cash investments and accounts
receivable. MobileMedia places its temporary cash investments with high-
quality institutions and, by policy, limits its credit exposure to any one
institution. Although MobileMedia faces significant credit risk from its
customers, which has been aggravated due to MobileMedia's operating problems,
such risk does not result from a concentration of credit risk as a result of
the large number of customers which comprise MobileMedia's customer base.
MobileMedia generally does not require collateral or other security to support
customer receivables.
Inventories
MobileMedia values inventories at the lower of specific cost or market
value. Inventories consist of pagers held specifically for resale by
MobileMedia.
Revenue Recognition
MobileMedia recognizes revenue under service, rent and maintenance
agreements with customers at the time the related services are performed.
Advance billings for services are deferred and recognized as revenue when
earned. MobileMedia leases (as lessor) certain pagers under operating leases.
Sales of pagers are recognized upon delivery.
Reclassifications
Certain 1995 financial statement items have been reclassified to conform to
the 1996 and 1997 presentation.
Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from these estimates.
Property and Equipment
Effective October 1, 1997, MobileMedia shortened the estimated useful life
of pagers from four to three years. This change resulted in additional
depreciation expense of approximately $2,500 in 1997.
Property and equipment are stated at cost, less accumulated depreciation.
While several companies manufacture pagers, MobileMedia purchases a
significant percentage of its pagers from one supplier. Any disruption of such
supply could have a material impact on MobileMedia's operations.
Expenditures for maintenance are charged to expense as incurred.
Upon retirement of pagers, the cost and related accumulated depreciation are
removed from the accounts and the net book value, if any, is charged to
depreciation expense. Upon the sale of pagers, the net book value is charged
to cost of products sold.
F-29
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Depreciation and amortization are computed using the straight-line method
over the following estimated useful lives:
<TABLE>
<S> <C>
Pagers............................................................ 3 years
Radio transmission equipment...................................... 10 years
Computer equipment................................................ 4 years
Furniture and fixtures............................................ 5 years
Leasehold improvements............................................ 1-10 years
Buildings......................................................... 30 years
</TABLE>
Intangible Assets
Intangible assets consist primarily of customer lists, FCC licenses, a non-
competition agreement, software and the excess of consideration paid over fair
values of net assets acquired and are being amortized principally using the
straight-line method over periods ranging from 1 to 40 years. In connection
with the impairment writedown discussed below, MobileMedia revised the lives
of FCC licenses and customer lists to 25 years and 3 years, respectively.
Impairment of Long-Lived Assets
In accordance with Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets
to be Disposed Of", MobileMedia records impairment losses on long-lived assets
used in operations when events and circumstances indicate that the assets
might be impaired and the undiscounted cash flows estimated to be generated by
those assets are less than the net book value of those assets. In 1997,
MobileMedia determined impairment existed with respect to its long-lived
assets as of December 31, 1996. Such determination was based upon the
existence of adverse business circumstances, such as MobileMedia's bankruptcy,
its 1996 operating results and the uncertainty associated with the pending FCC
proceeding. In July 1998, MobileMedia evaluated the ongoing value of its long-
lived assets effective December 31, 1996 and, based on this evaluation,
MobileMedia determined that intangible assets with a net book value of
$1,118,231 were impaired and wrote them down by $792,478 to their estimated
fair value. Fair value was determined through the application of generally
accepted valuation methods to MobileMedia's projected cash flows, discounted
at an estimated market rate of interest. The remaining carrying amount of
long-lived assets are expected to be recovered based on MobileMedia's
estimates of cash flows. However, it is possible that such estimates could
change based upon the uncertainties of the bankruptcy process and because
future operating and financial results may differ from those projected which
may require further writedowns to fair value.
Debt Issue Costs
Debt issue costs, which relate to the long term debt discussed in Note 6,
are reported as "Other assets" in the accompanying balance sheets. Such costs
amounted to $26,582 at December 31, 1996, $22,939 at December 31, 1997 and
$20,206 at September 30, 1998 (unaudited) and are being amortized on a
straight line basis over the term of the related debt.
Restructuring Costs
Restructuring costs are primarily comprised of professional fees
constituting administrative expenses incurred by MobileMedia as a result of
reorganization under Chapter 11 of the Bankruptcy Code.
Income Taxes
Income taxes are accounted for by the liability method in accordance with
Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes".
F-30
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Unaudited Interim Financial Statements
The interim financial information as of September 30, 1998 and the nine
months ended September 30, 1997 and 1998 contained herein is unaudited but, in
the opinion of management, includes all adjustments of a normal recurring
nature that are necessary for a fair presentation of the financial position,
results of operations, and cash flows for the periods presented. Results of
operations for the interim periods presented are not necessarily indicative of
results of operations for the entire year.
New Authoritative Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130 "Reporting Comprehensive Income" ("SFAS
No. 130"), which is effective for years beginning after December 15, 1997.
SFAS No. 130 establishes standards for reporting and display of comprehensive
income and its components (revenues, expenses, gains, and losses) in a full
set of general-purpose financial statements. This Statement requires that all
items that are required to be recognized under accounting standards as
components of comprehensive income be reported in a financial statement that
is displayed with the same prominence as other financial statements. SFAS No.
130 is effective for financial statements for fiscal years beginning after
December 15, 1997, and therefore MobileMedia will adopt the new requirements
retroactively in 1998. Management does not anticipate that the adoption of
SFAS No. 130 will have a significant effect on MobileMedia's reporting.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131 "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS No. 131"), which is effective for
years beginning after December 15, 1997. SFAS No. 131 establishes standards
for the way that public business enterprises report information about
operating segments in annual financial statements and requires that those
enterprises report selected information about operating segments in interim
financial reports. It also establishes standards for related disclosures about
products and services, geographic areas, and major customers. SFAS No. 131 is
effective for financial statements for fiscal years beginning after December
15, 1997. Management has not completed its review of SFAS No. 131, but does
not anticipate that the adoption of this statement will have any effect on
MobileMedia's reporting.
In April 1998, the Accounting Standards Executive Committee of the Financial
Accounting Standards Board issued Statement of Position 98-5 ("SOP 98-5")
"Reporting on the Costs of Start-Up Activities". SOP 98-5 requires costs of
start-up activities and organization costs to be expensed as incurred. Initial
application of SOP 98-5 will be reported as the cumulative effect of a change
in accounting principle. MobileMedia intends to adopt SOP 98-5 effective
January 1, 1999. The adoption of SOP 98-5 is not expected to have a material
effect on MobileMedia's financial position or results of operations.
3. ACQUISITIONS AND DIVESTITURES
On September 3, 1998, MobileMedia completed the sale of 166 transmission
towers to Pinnacle Towers, Inc. ("Pinnacle") for $170.0 million in cash (the
"Tower Sale"). Under the terms of a lease with Pinnacle, MobileMedia will
lease antenna sites located on these towers for an initial period of 15 years
at an aggregate annual rental of $10.7 million. The sale was accounted for in
accordance with Statement of Financial Accounting Standards No. 28, Accounting
for Sales with Leasebacks, and resulted in a recognized gain of $94.2 million
and a deferred gain of $70.0 million. The deferred gain will be amortized on a
straight-line basis over the initial lease period of 15 years. Subsequent to
the sale, MobileMedia distributed the $170.0 million in proceeds to its
secured creditors, who had a lien on such assets.
On January 4, 1996, MobileMedia completed its acquisition of MobileComm,
BellSouth's paging and wireless messaging unit, and an associated nationwide
two-way narrowband 50/12.5 kHz PCS license, and
F-31
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
BellSouth agreed to enter into a two-year non-compete agreement and a five-
year reseller agreement with MobileMedia (the "MobileComm Acquisition"). The
aggregate consideration paid for the MobileComm Acquisition (excluding fees
and expenses and related financing costs) was approximately $928,709.
The MobileComm Acquisition has been accounted for as a purchase transaction
in accordance with Accounting Principles Board Opinion No. 16 and,
accordingly, the financial statements for the periods subsequent to January 4,
1996 reflect the purchase price and transaction costs of $24,328, allocated to
tangible and intangible assets acquired and liabilities assumed based on their
estimated fair values as of January 4, 1996. The allocation of the purchase
price is summarized as follows:
<TABLE>
<S> <C>
Current assets.................................................... $ 55,301
Property and equipment............................................ 112,986
Intangible assets................................................. 934,269
Other assets...................................................... 143
Liabilities assumed............................................... (149,662)
---------
$ 953,037
=========
</TABLE>
On August 31, 1995, MobileMedia purchased the paging assets and messaging
services business (the "Paging Business") of Dial Page, Inc. ("Dial Page"),
including the capital stock of two wholly-owned Dial Page subsidiaries, and
assumed certain liabilities of the Paging Business (the "Dial Page
Acquisition"). The purchase price for the Paging Business was $187,396,
comprised of cash and the assumption by MobileMedia of the aggregate principal
amount of and accrued interest on certain indebtedness of Dial Page.
The Dial Page Acquisition has been accounted for as a purchase transaction
in accordance with Accounting Principles Board Opinion No. 16 and,
accordingly, the financial statements for the periods subsequent to August 31,
1995 reflect the purchase price, including bond tender premium and consent,
and fees of $7,444 and transaction costs of $5,339, allocated to tangible and
intangible assets acquired and liabilities assumed based on their estimated
fair values as of August 31, 1995.
The allocation of the purchase price is summarized as follows:
<TABLE>
<S> <C>
Current assets..................................................... $ 3,441
Property and equipment............................................. 37,406
Intangible assets.................................................. 167,101
Other assets....................................................... 74
Liabilities assumed................................................ (7,843)
--------
$200,179
========
</TABLE>
Results of operations for the year ended December 31, 1995 include results
of Dial Page subsequent to August 31, 1995. The following unaudited pro forma
information reflects the results of operations of MobileMedia assuming the
Dial Page and MobileComm acquisitions had occurred as of January 1, 1995.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, 1995
-----------------
<S> <C>
Net revenue................................................ $ 559,236
Net loss................................................... $(213,173)
</TABLE>
On October 23, 1995, MobileMedia completed the purchase of additional
capacity for its nationwide Private Carrier Paging channel for $10,175 from
MAP Mobile Communications, Inc.
F-32
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
4. PROPERTY AND EQUIPMENT
Property and equipment are summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------- SEPTEMBER 30,
1996 1997 1998
-------- -------- -------------
(UNAUDITED)
<S> <C> <C> <C>
Pagers.......................................... $228,924 $196,791 $175,994
Radio transmission equipment.................... 191,952 202,296 201,822
Computer equipment.............................. 25,641 30,896 32,215
Furniture and fixtures.......................... 19,435 20,918 21,890
Leasehold improvements.......................... 14,943 14,652 16,022
Construction in progress........................ 1,494 1,128 4,664
Land, buildings and other....................... 12,947 7,911 6,476
-------- -------- --------
495,336 474,592 459,083
Accumulated depreciation........................ 167,579 216,655 240,210
-------- -------- --------
Property and equipment, net..................... $327,757 $257,937 $218,873
======== ======== ========
</TABLE>
5. INTANGIBLE ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------------------------------------------------
1996 1997 SEPTEMBER 30, 1998 (UNAUDITED)
-------------------------------------------- ------------------------------ ------------------------------
FAS 121
ACCUMULATED IMPAIRMENT ADJUSTED ACCUMULATED ADJUSTED ACCUMULATED
COST AMORTIZATION CHARGE NET COST AMORTIZATION NET COST AMORTIZATION NET
---------- ------------ ---------- -------- -------- ------------ -------- -------- ------------ --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FCC Licenses.... $ 774,731 $ (22,757) $(490,651) $261,323 $261,323 $ (8,918) $252,405 $261,323 $(14,882) $246,441
Customer lists.. 288,137 (102,735) (120,972) 64,430 64,430 (21,477) 42,953 64,430 (37,584) 26,846
Software........ 3,500 (1,167) (2,333) -- -- -- -- -- -- --
Non-competition
agreement...... 125,999 (114,029) (11,970) -- -- -- -- -- -- --
Excess of
consideration
paid over fair
value of net
assets
acquired....... 176,646 (10,094) (166,552) -- -- -- -- -- -- --
---------- --------- --------- -------- -------- -------- -------- -------- -------- --------
$1,369,013 $(250,782) $(792,478) $325,753 $325,753 $(30,395) $295,358 $325,753 $(52,466) $273,287
========== ========= ========= ======== ======== ======== ======== ======== ======== ========
</TABLE>
MobileMedia is not amortizing the cost of two nationwide Personal
Communications Services ("PCS") licenses, one acquired directly from the FCC
and the other as a result of the MobileComm acquisition, since the
construction of paging networks related to such licenses has not been
completed.
F-33
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
6. DEBT
Debt is summarized as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------- SEPTEMBER 30,
1996 1997 1998
---------- ---------- -------------
(UNAUDITED)
<S> <C> <C> <C>
DIP credit facility........................ $ -- $ 10,000 $ --
Revolving loan............................. 99,000 99,000 72,900
Term loan.................................. 550,000 550,000 406,100
10 1/2% Senior Subordinated Deferred Coupon
Notes due December 1, 2003................ 172,628 174,125 174,125
9 3/8% Senior Subordinated Notes due
November 1, 2007.......................... 250,000 250,000 250,000
Dial Page Notes............................ 1,570 1,570 1,570
Note Payable............................... 998 986 986
---------- ---------- --------
Total debt............................... $1,074,196 $1,085,681 $905,681
========== ========== ========
</TABLE>
The debt obligations of MobileMedia include:
1) A debtor-in-possession credit facility ("DIP Facility") with a
syndicate of lenders including The Chase Manhattan Bank, as Agent (the "DIP
Lenders"). As of September 30, 1998 there were no funded borrowings and as
of December 31, 1997, there was $10,000 of borrowings outstanding under
this facility. MobileMedia is subject to certain financial and operating
restrictions customary to credit facilities of this type including a
limitation on periodic capital expenditures, minimum allowable periodic
EBITDA and retention of a turnaround professional. Additionally,
MobileMedia is required to make monthly interest payments to the DIP
Lenders. The DIP Facility bears interest at a rate of LIBOR plus 250 basis
points or Base Rate plus 150 basis points, at the option of MobileMedia.
During 1997, the debtors drew down $47 million of borrowings and repaid $37
million under the DIP Facility. During January and February, 1998 the
Debtors repaid an additional $10 million. On January 27, 1998, the DIP
Facility was amended and reduced from $200,000 to $100,000. On August 12,
1998, MobileMedia received approval from the Bankruptcy Court to extend the
DIP Facility to March 31, 1999 and further reduce it from $100,000 to
$75,000.
2) A $750,000 senior secured and guaranteed credit agreement (the "Pre-
Petition Credit Agreement") with a syndicate of lenders including The Chase
Manhattan Bank, as Agent. As of September 30, 1998 there was $479,000
outstanding under this facility consisting of term loans of $101,500 and
$304,600 and loans under a revolving credit facility totaling $72,900. This
agreement was entered into on December 4, 1995, in connection with the
financing of the MobileComm Acquisition. Commencing in 1996 MobileMedia was
in default under this agreement. As a result of such default and the
bankruptcy filing, MobileMedia has no borrowing capacity under this
agreement. Since the Petition date, MobileMedia has brought current its
interest payments and has been making monthly payments to the lenders under
the Pre-Petition Credit Agreement equal to the amount of interest accruing
under such agreement. On September 3, 1998, MobileMedia repaid $170,000 of
borrowings under the Pre-Petition Credit Agreement with proceeds from the
Tower Sale (see Note 3).
3) $250,000 Senior Subordinated Notes due November 1, 2007 (the "9 3/8%
Notes") issued in November 1995, concurrent with MobileMedia's second
offering of Class A Common Stock (See Note 11). These notes bear interest
at a rate of 9 3/8% payable semiannually on May 1 and November 1 of each
year. On November 1, 1996, MobileMedia did not make its scheduled interest
payment on its 9 3/8% Notes which constituted an event of default. The note
holders have not exercised any rights or remedies afforded such
F-34
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
holders (which rights include, but are not limited to, acceleration of the
stated maturity of the notes). Since the Petition date, any such right or
remedy is subject to the automatic stay created by the Bankruptcy Code.
4) $210,000 of Senior Subordinated Deferred Coupon Notes (the "Deferred
Coupon Notes") issued, at a discount, in November 1993. The Deferred Coupon
Notes accrete at a rate of 10 1/2%, compounded semiannually, to an
aggregate principal amount of $210,000 by December 1, 1998 after which
interest is paid in cash at a rate of 10 1/2% and is payable semiannually.
By virtue of the missed interest payments on the 9 3/8% Notes and the Pre-
Petition Credit Agreement an event of default has occurred. The note
holders have not exercised any rights or remedies afforded such holders
(which rights include, but are not limited to, acceleration of the stated
maturity of the notes). Since the Petition date, any such right or remedy
is subject to the automatic stay created by the Bankruptcy Code.
Interest Expense on Debt
Interest paid during the years ended December 31, 1995, 1996 and 1997, and
the nine months ended September 30, 1997 and 1998 (unaudited) was $9,828,
$65,978, $76,624, $58,114 and $41,321, respectively. Total interest cost
incurred for the years ended December 31, 1995, 1996 and 1997 was $31,952,
$94,231 and $68,409, respectively of which $176, $1,292 and $1,249 was
capitalized. Total interest cost incurred for the nine months ended September
30, 1997 and 1998 was $51,661 and $42,573, respectively of which $130 and $124
was capitalized.
Subsequent to the Petition date, interest was accrued and paid only on the
Pre-Petition Credit Agreement and the DIP Facility. If not for the filing,
interest expense for the year ended December 31, 1997 and the nine months
ended September 30, 1997 and 1998 (unaudited) would have been approximately
$104,152, $78,067 and $75,994 respectively.
7. RELATED PARTY TRANSACTIONS
On February 8, 1995 Parent called upon certain investors for an additional
$25,000 of capital which was required to be contributed to MobileMedia in
exchange for 137,095 shares of Class A and 2,362,900 shares of Class B common
stock at $10 per share and warrants to purchase 51,014 shares of Class A
Common Stock. On June 13, 1995, MobileMedia received the $25,000 from the
exercise of such call.
8. INCOME TAXES
The components of income tax benefit (expense) are as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1995 1996 1997
------- --------- -------
<S> <C> <C> <C>
Current:
Federal.......................................... $ -- $ -- $ --
State and local.................................. -- -- --
------- --------- -------
Deferred:
Federal.......................................... -- 52,081 --
State and local.................................. -- 17,361 --
------- --------- -------
Total.......................................... $ -- $ 69,442 $ --
======= ========= =======
</TABLE>
MobileMedia is included in the Parent's consolidated federal income tax
return. Income taxes are presented in the accompanying financial statements as
if MobileMedia filed tax returns as a separate consolidated entity.
F-35
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
A reconciliation of income tax benefit and the amount computed by applying
the statutory federal income tax rate to loss before income taxes is as
follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1995 1996 1997
-------- --------- --------
<S> <C> <C> <C>
Tax benefit at federal statutory rate........ $ 14,377 $ 395,285 $ 43,604
Goodwill and intangible amortization and
writedown................................... -- (95,362) --
Valuation allowance on federal deferred tax
assets...................................... (14,377) (230,481) (43,604)
-------- --------- --------
Total...................................... $ -- $ 69,442 $ --
======== ========= ========
</TABLE>
The effect of the valuation allowance shown above represents federal tax
effects on income from continuing operations.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for federal and state income tax purposes. The
components of deferred tax liabilities are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1996 1997
--------- ---------
<S> <C> <C>
Deferred tax liabilities:
Difference in book and tax basis of fixed assets.... $ -- $ 10,206
Other............................................... -- 68
--------- ---------
Net deferred tax liabilities...................... -- 10,274
Deferred tax assets:
Accounts receivable reserves........................ 22,476 10,578
Differences between the book and tax basis of
intangible assets.................................. 136,492 128,462
Difference between book and tax basis of accrued
liabilities........................................ 3,425 5,089
Net operating loss carryforward..................... 80,440 161,840
Difference between book and tax basis of fixed
assets............................................. 2,208 --
Other............................................... 1,357 --
--------- ---------
Total deferred assets............................. 246,398 305,969
Valuation allowances for deferred tax assets...... (249,053) (298,350)
--------- ---------
Net deferred tax assets........................... (2,655) 7,619
========= =========
Net deferred tax liabilities...................... $ 2,655 $ 2,655
========= =========
</TABLE>
As of December 31, 1997, MobileMedia has available net operating loss
carryforwards for tax purposes of approximately $400,000 which expire in years
2008 through 2012. Utilization of these losses may be limited under Section
382 of the Internal Revenue Code.
MobileMedia believes consummation of the public offering of 15,525,000
shares of Class A Common Stock on November 7, 1995 caused an ownership change
for MobileMedia for purposes of Section 382 of the Code. As a result, the use
of MobileMedia's pre-ownership change net operating loss carryforwards will be
limited annually by the Section 382 Limitation, which is estimated to be
approximately $40.0 million. If a second ownership change occurred subsequent
to November 7, 1995, which has not been determined, use of MobileMedia's net
operating losses would be severely limited. It is also anticipated that the
net operating loss carryforwards and possibly other tax attributes will be
substantially reduced as a result of consummation of the Plan.
F-36
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
9. LEASES
Certain facilities and equipment used in operations are held under operating
leases. In accordance with the Bankruptcy Code, all lease contracts will be
reviewed, and subject to Court approval, are subject to rejection. Rental
expenses under operating leases were $14,983, $44,574, $43,453, $32,891 and
$30,847 for the years ended December 31, 1995, 1996 and 1997 and the nine
months ended September 30, 1997 and 1998 (unaudited), respectively. At
December 31, 1997, the aggregate minimum rental commitments under leases were
as follows:
<TABLE>
<S> <C>
1998................................................................ $ 23,566
1999................................................................ 18,953
2000................................................................ 14,037
2001................................................................ 7,625
2002................................................................ 4,788
Thereafter.......................................................... 7,707
--------
$ 76,676
========
</TABLE>
On March 23, 1998, MobileMedia moved into a new headquarters facility
pursuant to a lease with Miller Freeman, Inc. entered into with Bankruptcy
Court approval. On April 1, 1998, MobileMedia, with Bankruptcy Court approval,
assigned its prior lease of rental property used for its Headquarters office
to Southwestern Bell Yellow Pages, Inc. The lease expires in June, 2001. The
estimated annual savings related to this lease assignment and the lease with
Miller Freeman, Inc. is approximately $1,400. The cost savings is not
reflected in the above minimum rental commitments.
10. EMPLOYEE BENEFIT PLANS
MobileMedia has adopted a retirement savings plan that allows all employees
who have been employed for one year and have at least 1,000 hours of credited
service to contribute and defer up to 15% of their compensation. Effective
February 1, 1996, MobileMedia began a matching contribution of 50% of the
first 2% of the elected deferral plus an additional 25% of the next 4% of the
elected deferral. MobileMedia's matching contribution was $700 in 1996, $730
in 1997 and $555 and $506 for the nine months ended September 30, 1997 and
1998 (unaudited), respectively.
Employees of MobileComm and Dial Page who were hired by MobileMedia were
eligible to participate in MobileMedia's retirement savings plan based on
their recognized MobileComm and Dial Page service date. As of the date of the
MobileComm and Dial Page Acquisitions employees with one year and at least
1,000 hours of credited service were eligible to participate.
11. COMMON STOCK, STOCK OPTION PLANS AND STOCK WARRANTS
On July 6, 1995, Parent issued an aggregate of 8,000,000 shares of Class A
Common Stock in a public offering at a price of $18.50 per share. Parent
received net proceeds from the sale of approximately $137,975. In addition, on
July 25, 1995, the underwriters exercised their over-allotment option to
purchase an additional 800,000 shares of Class A Common Stock at the initial
public offering price. Accordingly, Parent received additional net proceeds of
$13,910 for the over-allotment shares. On November 13, 1995, Parent issued an
aggregate of 13,500,000 shares of Class A Common Stock at a public offering
price of $23.75 resulting in net proceeds of approximately $308,755. In
addition, the underwriters exercised their over-allotment option to purchase
an additional 2,025,000 shares of Class A Common Stock at the public offering
price resulting in additional net proceeds of approximately $46,170.
F-37
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
Non-Employee Directors
MobileMedia adopted a stock option plan under which options to purchase
MobileMedia's Class A Common Stock would be granted to the Company's non-
employee directors. Options for a total of 121,800 shares of Class A Common
Stock were issued under the Plan since the beginning of the Plan. All exercise
prices per share were considered to be the fair market value at the date of
grant. The plan was amended in 1997 to provide that no additional options may
be granted. Accordingly, no additional options were granted after 1996 under
the Plan. At December 31, 1996, options for a total of 92,040 shares of Class
A Common Stock, at exercise prices ranging from $10.00 to $26.38, were
outstanding. At December 31, 1997, options for a total of 90,290 shares of
Class A Common Stock were outstanding.
Employees
MobileMedia has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" and related interpretations in
accounting for its employee stock options because the alternative fair value
accounting provided for under FASB Statement No. 123, "Accounting for Stock-
Based Compensation," requires use of option valuation models that were not
developed for use in valuing employee stock options. Under APB 25, because the
exercise price of MobileMedia's employee stock option equals the market price
of the underlying stock on the date of grant, no compensation expense is
recognized. In light of MobileMedia's current circumstances, the pro forma
effect of stock compensation expense pursuant to SFAS No. 123 has not been
calculated. MobileMedia adopted the 1993 MobileMedia Corporation Stock Option
Plan (the "Option Plan") under which options to purchase shares of
MobileMedia's Class A Common Stock may be granted to officers and key
employees of MobileMedia.
Two types of options may be granted under the Option Plan: options intended
to qualify as incentive stock options under Section 422 of the Code, and "non-
qualified" stock options not specifically authorized or qualified for
favorable federal income tax treatment under the Code. The option exercise
price for incentive stock options granted under the Option Plan may not be
less than the fair market value (as defined in the Option Plan) of Parent's
Class A Common Stock on the date the option is granted. The exercise price of
non-qualified stock options may be set by the Board of Directors at a discount
from fair market value. Prior to the Petition date, qualified and non-
qualified options issued to certain current and former officers and key
employees of MobileMedia to purchase up to 1,618,740, 1,414,893 and 1,276,515,
shares of Class A Common Stock at December 31, 1996 and 1997 and September 30,
1998, respectively, at exercise prices ranging from $6.81 to $10.00 per share,
were outstanding.
12. COMMITMENTS AND CONTINGENCIES
MobileMedia is party to a number of lawsuits and other matters arising in
the ordinary course of business.
As announced on September 27, 1996 and October 21, 1996, MobileMedia
discovered misrepresentations and other violations that occurred during the
licensing process for as many as 400 to 500, or approximately 6% to 7%, of its
approximately 8,000 local transmission one-way paging stations. MobileMedia
caused an investigation to be conducted by its outside counsel, and a
comprehensive report regarding these matters was provided to the FCC in the
fall of 1996. In cooperation with the FCC, outside counsel's investigation was
expanded to examine all MobileMedia's paging licenses, and the results of that
investigation were submitted to the FCC on November 8, 1996.
On January 13, 1997, the FCC issued a Public Notice relating to the status
of certain FCC authorizations held by MobileMedia. Pursuant to the Public
Notice, the FCC announced that it had (i) automatically terminated
approximately 185 authorizations for paging facilities that were not
constructed by the expiration date of their construction permits and remained
unconstructed, (ii) dismissed approximately 93 applications for fill-in sites
F-38
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
around existing paging stations (which had been filed under the so-called "40-
mile rule") as defective because they were predicated upon unconstructed
facilities and (iii) automatically terminated approximately 99 other
authorizations for paging facilities that were constructed after the
expiration date of their construction permits. With respect to the
approximately 99 authorizations where the underlying station was untimely
constructed, the FCC granted MobileMedia interim operating authority subject
to further action by the FCC.
On April 8, 1997, the FCC adopted an order commencing an administrative
hearing into the qualification of MobileMedia to remain a licensee. The order
directed an Administrative Law Judge to take evidence and develop a full
factual record on directed issues concerning MobileMedia's filing of false
forms and applications. MobileMedia was permitted to operate its licensed
facilities and provide service to the public during the pendency of the
hearing.
On June 6, 1997, the FCC issued an order staying the hearing proceeding in
order to allow MobileMedia to develop and consummate a plan of reorganization
that provides for a change of control of MobileMedia and a permissible
transfer of MobileMedia's FCC licenses. The order was originally granted for
ten months and was extended by the FCC through October 6, 1998. The order,
which is based on an FCC doctrine known as Second Thursday, provides that, if
there is a change of control that meets the conditions of Second Thursday, the
regulatory issues designated for administrative hearing will be resolved by
the transfer of MobileMedia's FCC licenses to the new owners of MobileMedia
and the hearing will not proceed. MobileMedia believes that a reorganization
plan that provides for either a conversion of certain existing debt to equity,
in which case existing MobileMedia shares will be eliminated, or a sale or
merger of MobileMedia will result in a change of control that will satisfy the
Second Thursday doctrine. On September 2, 1998, MobileMedia and Arch
Communications Group, Inc. ("Arch") filed a joint Second Thursday application.
MobileMedia believes the plan of reorganization referenced in the application
satisfies the conditions of Second Thursday. On October 5, 1998, a supplement
was filed to notify the FCC of certain modifications to the proposed
transaction. The application was accepted for filing by public notice dated
October 15, 1998. On October 16, 1998, MobileMedia and Arch filed a joint
supplement of data requested by the staff of the Wireless Telecommunications
Bureau to assist in their evaluation of the application.
In the event that MobileMedia was unable to consummate a plan of
reorganization that satisfies the conditions of Second Thursday, MobileMedia
would be required to proceed with the hearing, which, if adversely determined,
could result in the loss of MobileMedia's licenses or substantial monetary
fines, or both. Such an outcome would have a material adverse effect on
MobileMedia's financial condition and results of operations.
Prior to the Petition date, five actions allegedly arising under the federal
securities laws were filed against MobileMedia and certain of its present and
former officers, directors and underwriters in the United States District
Court for the District of New Jersey (the "New Jersey District Court"). These
actions were subsequently consolidated as In re MobileMedia Securities
Litigation, No. 96-5723 (AJL) (the "New Jersey Actions"). A consolidated
amended complaint (the "Complaint") was filed on November 21, 1997. The
Complaint does not name MobileMedia as a defendant.
In June 1997, the Debtors initiated an Adversary Proceeding in the
Bankruptcy Court to stay the prosecution of the New Jersey Actions. Pursuant
to a Stipulation entered into among the Debtors and the plaintiffs in the New
Jersey Actions and "So Ordered" by the Bankruptcy Court on October 31, 1997,
the plaintiffs in the New Jersey Actions could conduct only limited discovery
in connection with the New Jersey Actions and could not file any pleadings,
except responses to motions to dismiss, until the earlier of September 30,
1998 and the effective date of a plan of reorganization. On October 21, 1998,
the defendents' motion to dismiss the New Jersey Actions filed with the New
Jersey District Court on January 16, 1998 was denied.
F-39
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MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
In addition to the New Jersey Actions, two lawsuits (together, the
"California Actions" and, together with the New Jersey Actions, the
"Securities Actions") were filed in September 1997 in the United States
District Court for the Northern District of California and the Superior Court
of California naming as defendants certain former officers and certain present
and former directors of MobileMedia, certain investment entities and the
Debtors' independent auditors. None of the Debtors is named as defendant in
the California Actions.
On November 4, 1997, the Debtors commenced an adversary proceeding in the
Bankruptcy Court seeking to stay the prosecution of the California Actions
against the named defendants. At hearings held on December 10, 1997 and May
29, 1998, the Bankruptcy Court enjoined the plaintiffs in the California
Actions until September 15, 1998 from taking certain actions in connection
with the California Actions, with certain exceptions.
Neither the New Jersey Actions nor the California Actions name any of the
Debtors as a defendant. However, proofs of claim have been filed against the
Debtors by the plaintiffs in the New Jersey Actions, and both the New Jersey
Actions and the California Actions may give rise to claims against the
Debtors' Directors, Officers and Corporate Liability Insurance Policy. It is
anticipated that under any plan of reorganization for MobileMedia these Claims
will receive no distributions.
Three former employees have pre-petition agreements which provide an
incentive payment of up to $300 to each of them if the EBITDA for 1996 of an
entity specified in such agreements equals or exceeds $82,000, subject to
certain adjustments (the "1996 Target"), and of up to $1,000 to each of them
if the EBITDA for 1998 of an entity specified in such agreements equals or
exceeds $125,100, subject to certain adjustments (the "1998 Target"). One
current and four former employees have pre-petition agreements which provide
for incentive payments of up to $150 to each of them if the specified entity
meets the 1996 Target and of up to $300 to each of them if the specified
entity meets the 1998 Target. Several former employees have submitted proofs
of claim with the Bankruptcy Court with respect to these incentive payments.
MobileMedia intends to object to these unsecured claims.
13. OTHER INVESTMENTS
On March 21, 1995, MobileMedia purchased a 33% interest in Abacus
Communications Partners, L.P., a Delaware limited partnership, from Abacus
Business Services, Inc. for $1,641. Abacus Communications Partners, L.P. is
one of MobileMedia's alphanumeric dispatch services providers. The investment
has been accounted for under the equity method in accordance with Accounting
Principles Board Opinion No. 18. Under the equity method, original investments
are recorded at cost and adjusted by MobileMedia's share of undistributed
earnings or losses of the purchased company. MobileMedia's share of income
(loss) of affiliate, net of distribution, for the years ended December 31,
1995, 1996 and 1997 and for the nine months ended September 30, 1997 and 1998
(unaudited), was $(303), $162, $69, $(54) and $97, respectively.
14. IMPACT OF YEAR 2000 (UNAUDITED)
GENERAL
Computer systems were originally designed to recognize calendar years by the
last two digits in the date code field. Beginning in the year 2000, these date
code fields will need to accept four digit entries to distinguish twenty-first
century dates from twentieth century dates. Any of MobileMedia's computer
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000. This could result in a system failure
or miscalculations causing disruptions of operations, including, among other
things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities. As a result, in less than two
years, the computerized systems (including both information and non-
information technology systems) and applications used by MobileMedia will need
to be reviewed, evaluated and, if and where necessary, modified or replaced to
ensure that all financial, information and operating systems are Year 2000
compliant.
F-40
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MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
State of Readiness
MobileMedia has formed an internal task force comprised of representatives
of its various relevant departments to address Year 2000 compliance matters.
The task force has undertaken a preliminary review of internal and external
areas that are likely to be affected by Year 2000 compliance matters and has
classified the various areas as mission critical, important or non-
critical/non-important. MobileMedia also expects to hire outside consultants
to review MobileMedia's testing methodology and test results, to assess its
contingency planning and to provide general oversight relating to Year 2000
compliance matters.
With respect to internal matters, MobileMedia has completed a review of its
hardware and software to determine whether its business-related applications
(including applications relating to distribution, finance, inventories,
operations, pager activation, purchasing and sales/marketing) will be year
2000 compliant. In addition, in the last quarter of 1998, programs designed to
identify Year 2000 problems associated with dates embedded in certain
business-related files were created and run to identify any Year 2000
compliance issues. While the results of the tests are still being analyzed,
relatively few Year 2000 problems were identified. Additional testing is
scheduled for the first quarter of 1999, including testing of MobileMedia's
financial and human resource software packages. There can be no assurance,
however, that such testing has, or will, detect all compliance issues related
to the Year 2000 problem.
With respect to external matters, MobileMedia has distributed questionnaires
and requests for certification to its mission critical vendors and is in the
process of obtaining and reviewing the responses thereto. The questionnaires
have requested information concerning embedded technologies of such vendors,
the hardware and software applications used by such vendors and the Year 2000
compliance efforts of such vendors relating thereto.
Estimated Year 2000 Compliance Costs
MobileMedia has an information technology staff of approximately 68 people
that has addressed technical issues relating to the Year 2000 compliance
matters. To date, MobileMedia has incurred approximately $50,000 in costs
(excluding in-house labor and hardware) in connection with Year 2000
compliance matters. In addition, MobileMedia has purchased upgraded hardware
at a cost of approximately $150,000 for use as redundant equipment in testing
for Year 2000 problems in an isolated production environment. MobileMedia
estimates that it will expend approximately $200,000 on additional software
and other items related to the Year 2000 compliance matters.
In addition, MobileMedia estimates that it will incur approximately $200,000
in costs relating to Year 2000 remediation efforts for its paging network
hardware. MobileMedia has also upgraded its paging network hardware over the
fiscal year 1998 and plans further upgrades in fiscal year 1999. Such upgrades
have not been and are not expected to be purchased solely for remediation of
the Year 2000 compliance problems; such upgrades are not themselves expected
to have Year 2000 compliance problems.
Risks relating to Year 2000 Compliance Matters
MobileMedia has a goal to become Year 2000 compliant with respect to
internal matters during calendar year 1999. Although MobileMedia has begun and
is undertaking testing of its internal business-related hardware and software
applications, there can be no assurances that such testing will detect all
applications that may be affected by Year 2000 compliance problems. With
respect to external matters, due to the multi-dependent and interdependent
issues raised by Year 2000 compliance, including many factors beyond its
control, MobileMedia may face the possibility that one or more of its mission
critical vendors, such as its utilities, telephone carriers, equipment
manufacturers or satellite carriers, may not be Year 2000 compliant on a
timely basis. Because of the
F-41
<PAGE>
MOBILEMEDIA COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
unique nature of such vendors, alternate providers may not be available.
Finally, MobileMedia does not manufacture any of the pagers, paging-related
hardware or network equipment used by MobileMedia or its customers in
connection with MobileMedia's paging operations. Although MobileMedia has
tested such equipment, it has also relied upon the representations of its
vendors with respect to their Year 2000 readiness. MobileMedia can give no
assurance as to the accuracy of such vendors' representations.
Contingency Planning
MobileMedia has begun the process of assessing contingency plans that might
be available in the event of either internal or external Year 2000 compliance
problems. To this end, MobileMedia's various internal departments have begun
to prepare assessments of potential contingency alternatives. The Task Force
will undertake a review of these assessments in respect of application of
contingency plans on a department-by-department basis and on a company-wide
basis. MobileMedia intends to complete its contingency planning in respect of
Year 2000 compliance during calendar year 1999.
F-42
<PAGE>
ANNEX A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ARCH COMMUNICATIONS GROUP, INC.,
FARM TEAM CORP.,
MOBILEMEDIA CORPORATION
AND
MOBILEMEDIA COMMUNICATIONS, INC.
DATED AS OF AUGUST 18, 1998
AND AMENDED AS OF SEPTEMBER 3, 1998
AND AS OF DECEMBER 1, 1998
COMPOSITE COPY
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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ARTICLE I
THE MERGER
<C> <S> <C>
1.1 The Merger; Effective Time...................................... 2
1.2 The Closing..................................................... 2
1.3 Actions at the Closing.......................................... 3
1.4 Additional Action............................................... 3
1.5 Conversion of Securities........................................ 3
Appointment of Exchange Agent; Distributions in Accordance with
1.6 Amended Plan.................................................... 4
1.7 Distribution to Holders of Buyer Common Stock................... 4
1.8 Certificate of Incorporation.................................... 4
1.9 By-laws......................................................... 4
1.10 Directors and Officers.......................................... 4
1.11 Payment of Administrative Claims and Expenses................... 5
<CAPTION>
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE COMPANY
<C> <S> <C>
2.1 Organization, Qualification, Corporate Power and Authority...... 5
2.2 Capitalization.................................................. 6
2.3 Noncontravention................................................ 6
2.4 Business Entities............................................... 6
2.5 Financial Statements; Accounts Receivable; Inventory............ 7
2.6 Absence of Certain Changes...................................... 7
2.7 Undisclosed Liabilities......................................... 8
2.8 Tax Matters..................................................... 8
2.9 Tangible Assets................................................. 9
2.10 Owned Real Property............................................. 9
2.11 Intellectual Property........................................... 10
2.12 Real Property Leases............................................ 11
2.13 Contracts....................................................... 11
2.14 Licenses and Authorizations..................................... 12
2.15 Litigation...................................................... 13
2.16 Employees....................................................... 13
2.17 Employee Benefits............................................... 13
2.18 Environmental Matters........................................... 15
2.19 Legal Compliance................................................ 16
2.20 Subscriber Cancellations; Suppliers............................. 16
2.21 Capital Expenditures............................................ 16
2.22 Brokers' Fees................................................... 16
2.23 Certain Information............................................. 17
2.24 Disclosure...................................................... 17
<CAPTION>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
<C> <S> <C>
3.1 Organization Qualification, Corporate Power and Authority....... 18
3.2 Capitalization.................................................. 19
3.3 Noncontravention................................................ 20
3.4 Business Entities............................................... 20
</TABLE>
i
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<TABLE>
<CAPTION>
PAGE
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<C> <S> <C>
3.5 Reports and Financial Statements................................. 21
3.6 Absence of Certain Changes....................................... 21
3.7 Undisclosed Liabilities.......................................... 21
3.8 Tax Matters...................................................... 21
3.9 Tangible Assets.................................................. 23
3.10 Owned Real Property.............................................. 23
3.11 Intellectual Property............................................ 23
3.12 Real Property Leases............................................. 23
3.13 Contracts........................................................ 24
3.14 Licenses and Authorizations...................................... 24
3.15 Litigation....................................................... 25
3.16 Employees........................................................ 26
3.17 Employee Benefits................................................ 26
3.18 Environmental Matters............................................ 27
3.19 Legal Compliance................................................. 28
3.20 Merger Subsidiary................................................ 28
3.21 Capital Expenditures; Suppliers.................................. 28
3.22 Brokers' Fees.................................................... 28
3.23 Rights Agreement; Section 203.................................... 28
3.24 Opinion of Financial Advisor..................................... 28
3.25 Required Vote of the Buyer's Stockholders........................ 29
3.26 Certain Information.............................................. 29
3.27 Disclosure....................................................... 29
<CAPTION>
ARTICLE IV
COVENANTS
<C> <S> <C>
4.1 Best Efforts..................................................... 29
4.2 Approvals; Consents.............................................. 29
4.3 Buyer Not To Control............................................. 30
4.4 Bankruptcy Covenants............................................. 30
4.5 Operation of Business............................................ 31
4.6 Notice of Breaches............................................... 34
4.7 Exclusivity...................................................... 34
4.8 Breakup Fee Provisions........................................... 36
4.9 Nasdaq National Market Quotation................................. 36
4.10 Delivery of Financial Statements................................. 37
4.11 Full Access...................................................... 37
4.12 Stockholders Approval; Meeting................................... 37
4.13 Proxy Statement, Disclosure Statement, Etc....................... 37
4.14 Application of Pinnacle Proceeds................................. 38
4.15 FCC Filing....................................................... 38
4.16 Indemnification; Director and Officers Insurance................. 39
4.17 State Takeover Laws.............................................. 39
4.18 Employees........................................................ 39
4.19 Rights Agreement................................................. 40
4.20 Buyer Rights Offering; Registration Statement.................... 40
4.21 Reimbursement of Buyer's Expenses................................ 41
4.22 Stockholder Rights Offering...................................... 41
</TABLE>
ii
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<TABLE>
<CAPTION>
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ARTICLE V
CONDITIONS TO CLOSING
<C> <S> <C> <C>
5.1 Conditions to Obligations of Each Party...................... 42
5.2 Conditions to Obligations of the Buyer....................... 44
5.3 Conditions to Obligations of the Company..................... 44
<CAPTION>
ARTICLE VI
TERMINATION
<C> <S> <C> <C>
6.1 Termination of Agreement..................................... 45
6.2 Effect of Termination........................................ 46
<CAPTION>
ARTICLE VII
DEFINITIONS
ARTICLE VIII
GENERAL PROVISIONS
<C> <S> <C> <C>
8.1 Press Releases and Announcements............................. 51
8.2 No Third Party Beneficiaries................................. 51
8.3 Entire Agreement............................................. 51
8.4 Succession and Assignment.................................... 51
8.5 Counterparts................................................. 51
8.6 Headings..................................................... 51
8.7 Notices...................................................... 51
8.8 Governing Law................................................ 52
8.9 Amendments and Waivers....................................... 52
8.10 Severability................................................. 52
8.11 Expenses..................................................... 52
8.12 Specific Performance......................................... 52
8.13 Construction................................................. 52
8.14 Incorporation of Exhibits and Schedules...................... 52
8.15 Knowledge.................................................... 52
8.16 Survival of Representations.................................. 53
8.17 Bankruptcy Process........................................... 53
</TABLE>
iii
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LIST OF EXHIBITS
<TABLE>
<S> <C>
EXHIBIT A Second Amended Joint Plan of Reorganization
EXHIBIT B Buyer Participation Warrant Agreement
EXHIBIT C Registration Rights Agreement
EXHIBIT D Amendment to Buyer's Rights Agreement dated as of August 18, 1998
EXHIBIT D-1 Amendment to Buyer's Rights Agreement dated as of September 3, 1998
EXHIBIT E Opinion of Buyer's Financial Advisor
EXHIBIT F Buyer Charter Amendment
EXHIBITS G,H,I,J,K&L Standby Purchase Commitments
LIST OF SCHEDULES
SCHEDULE I Subsidiaries of the Company
SCHEDULE III Rights Offering Term Sheet
SCHEDULE IV Stockholder Rights Offering Term Sheet
</TABLE>
iv
<PAGE>
COMPOSITE AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") entered into as of
August 18, 1998 (the date of this Agreement or the "Agreement Date") and
amended as of September 3, 1998 and as of December 1, 1998 by and among Arch
Communications Group, Inc., a Delaware corporation (the "Buyer"), Farm Team
Corp., a Delaware corporation and a wholly-owned subsidiary of Buyer (the
"Merger Subsidiary"), MobileMedia Corporation, a Delaware corporation (the
"Parent"), and MobileMedia Communications, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Parent (the "Company" and, together with the
Buyer, the Merger Subsidiary and the Parent, the "Parties").
PRELIMINARY STATEMENT
A. The Parent, the Company and those subsidiaries of the Company set forth
in Schedule I attached hereto (collectively, the "Debtors" and each,
individually, a "Debtor") are debtors in possession in Chapter 11 cases (Case
Nos. 97-174 (PJW) through and including 97-192 (PJW)) (collectively the
"Chapter 11 Proceeding") pending before the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"). The Debtors have previously
filed a proposed Joint Plan of Reorganization dated January 27, 1998 (the
"Prior Plan") with the Bankruptcy Court.
B. This Agreement contemplates a merger of the Company into the Merger
Subsidiary. As a result of such merger, the separate corporate existence of
the Company shall cease and the Merger Subsidiary shall continue as the
Surviving Corporation (as defined in Section 1.1). For federal income tax
purposes, it is intended that such merger will qualify as a reorganization
under the provisions of Section 368(a)(2)(D) of the Internal Revenue Code of
1986, as amended (the "Code").
C. The merger contemplated by this Agreement shall constitute the basis for
the Debtors' Third Amended Joint Plan of Reorganization in the form attached
hereto as Exhibit A, as amended from time to time as permitted hereby and
thereby (the "Amended Plan"). Pursuant to the Amended Plan, which shall be
filed with the Bankruptcy Court as soon as practicable after the date of this
Agreement (but not later than December 2, 1998 in any event): (i) all the
outstanding equity interests in the Company and the Parent shall be canceled
without consideration, and the Parent shall be dissolved; (ii) all allowed
prepetition claims against, and prepetition obligations and indebtedness of,
the Debtors (the "Allowed Claims") shall be (a) satisfied by the distribution
of cash, shares of capital stock of the Buyer, Rights (as defined in paragraph
(E) below) and/or certain other consideration to the holders of the Allowed
Claims or (b) otherwise discharged; (iii) the commitments under the DIP Loan
Agreement (as defined in Section 1.11) shall be terminated and all amounts
owed under or in respect of the DIP Loan Agreement shall be paid in full in
cash; and (iv) the Merger Subsidiary shall remain a wholly owned subsidiary of
the Buyer.
D. This Agreement contemplates that the Buyer shall cause the Surviving
Corporation (as defined in Section 1.1) to pay or assume all allowed
administrative and priority claims and expenses of the Debtors and shall make
available to the Surviving Corporation the monies necessary for the timely
payment thereof.
E. In connection with the Merger (as defined in Section 1.1) and as part of
the Amended Plan, the Buyer intends to conduct the Rights Offering (as defined
in Section 4.20), in which it will issue to holders of certain Allowed Claims
transferable rights ("Rights") to purchase shares of Common Stock, $0.01 par
value per share, of the Buyer ("Buyer Common Stock") or shares of Buyer Class
B Common Stock (as defined in Section 3.1(b)), if applicable.
Contemporaneously with the execution and delivery of this Agreement, certain
holders of Allowed Claims (the "Standby Purchasers") are making certain
commitments in connection
1
<PAGE>
with the Rights Offering (as the same may be amended from time to time, the
"Standby Purchase Commitments"), copies of which are attached as Exhibits G,
H, I, J, K and L hereto. In partial consideration for the Standby Purchase
Commitments, the Buyer will issue to the Standby Purchasers warrants to
purchase shares of Buyer Common Stock ("Buyer Participation Warrants"), such
Buyer Participation Warrants to be issued pursuant to a warrant agreement in
the form attached hereto as Exhibit B-1 (the "Buyer Participation Warrant
Agreement"), as provided in the Standby Purchase Commitments. In addition, in
connection with the Standby Purchase Commitments, the Buyer and the Standby
Purchasers will enter into a registration rights agreement in the form
attached hereto as Exhibit C (as the same may be amended from time to time,
the "Registration Rights Agreement").
F. The Buyer will conduct the Stockholder Rights Offering (as defined in
Section 4.22), in which it will issue to holders of Buyer Common Stock and
Buyer's Series C Convertible Preferred Stock, $.01 par value per share (the
"Buyer Preferred Stock" and, together with the Buyer Common Stock, the "Buyer
Stock"), as of a record date to be determined by the Board of Directors of the
Buyer (the "Buyer Record Date"), such holders being referred to herein as the
"Stockholder Rights Holders", non-transferable rights ("Stockholder Rights")
(except that, at the Buyer's election, Stockholder Rights will transfer with
the underlying shares in respect of which Stockholder Rights are distributed)
to acquire an aggregate of 44,893,166 shares of Buyer Common Stock. In
connection therewith, immediately following the Merger, the Buyer will
distribute to the stockholders of the Buyer Participation Warrants to purchase
an aggregate number of shares of Buyer Common Stock equal to the excess of
44,893,166 over the number of shares of Buyer Common Stock issued upon
exercise of Stockholder Rights issued in the Stockholder Rights Offering (such
distribution being referred to herein as the "Buyer Distribution").
G. The transactions contemplated by this Agreement, including the Merger,
shall be consummated pursuant to the Amended Plan as confirmed by an order of
the Bankruptcy Court entered pursuant to Section 1129 of the Bankruptcy Code
(as defined in Section 2.1(a)) (the "Confirmation Order"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to them in the Amended Plan.
NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties further
agree as follows:
ARTICLE I
The Merger
1.1 The Merger; Effective Time. Upon the terms and subject to the conditions
of this Agreement and in accordance with the Delaware General Corporation Law
(the "DGCL"), the Company shall merge with and into the Merger Subsidiary
(such merger being referred to herein as the "Merger") at the Effective Time
(as defined below in this Section 1.1). The Merger shall have the effects set
forth in Section 259 of the DGCL. At the Effective Time, the separate
corporate existence of the Company shall cease and thereafter the Merger
Subsidiary shall continue as the surviving corporation in the Merger (the
"Surviving Corporation"), and all the rights, privileges, immunities, powers
and franchises (of a public as well as of a private nature) of the Company and
the Merger Subsidiary and all property (real, personal and mixed) of the
Company and the Merger Subsidiary shall vest in the Surviving Corporation. The
"Effective Time" shall be the time at which the Company and the Merger
Subsidiary file a certificate of merger or other appropriate documents
prepared and executed in accordance with the relevant provisions of the DGCL
(the "Certificate of Merger") with the Secretary of State of the State of
Delaware or such later time as may be specified in the Certificate of Merger.
1.2 The Closing. Unless this Agreement shall have been terminated pursuant
to Article VI hereof, the closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Hale and Dorr
LLP, 60 State Street, Boston, Massachusetts 02109, commencing at 10:00 a.m.,
local time, on a
2
<PAGE>
date to be mutually agreed by the Company and the Buyer, which date shall be
at least seven, but no more than ten, business days after the date upon which
all the conditions to the obligations of the Parties to consummate the
transactions contemplated hereby set forth in Section 5.1 (other than Section
5.1(j)) have first been satisfied or waived, which date shall be the same date
as the Effective Date under the Amended Plan (the "Closing Date"); provided
that the Closing shall not occur until the condition set forth in Section
5.1(j) shall have been satisfied and the conditions set forth in Sections 5.2
and 5.3 shall have been satisfied or waived. Notwithstanding anything
contained herein to the contrary, in no event will the Closing be earlier than
twelve business days after the Buyer delivers to the Standby Purchasers the
written notice required pursuant to Section 4(c)(i) of the Standby Purchase
Commitments.
1.3 Actions at the Closing. At the Closing, (a) the Parent and the Company
shall deliver to the Buyer and the Merger Subsidiary the various certificates,
instruments and documents referred to in Section 5.2, (b) the Buyer and the
Merger Subsidiary shall deliver to the Company the various certificates,
instruments and documents referred to in Section 5.3, (c) the Buyer shall file
with the Secretary of State of the State of Delaware the Buyer Charter
Amendment (as defined in Section 4.12), (d) the Company and the Merger
Subsidiary shall immediately thereafter file with the Secretary of State of
the State of Delaware the Certificate of Merger, (e)(i) the Buyer shall
deliver (A) to the Pre-Petition Agent, for the benefit of the Pre-Petition
Lenders, $479,000,000 in immediately available funds, (B) to the Company (or,
from and after the Effective Time, the Surviving Corporation) immediately
available funds when and as required in amounts sufficient to pay allowed
administrative and priority claims and expenses of the Debtors, whether
allowed prior to or after the Effective Time, as set forth in the Amended Plan
(collectively, the "Plan Cash") and (C) to a bank trust company or other
entity reasonably satisfactory to the Company and the Buyer appointed by the
Buyer to act as the exchange agent (the "Exchange Agent") pursuant to Section
1.6(a), certificates representing 14,344,969 shares of Buyer Common Stock (the
"Plan Shares") to be distributed as contemplated by Section 1.6(b), (ii) the
Buyer shall issue shares of Buyer Common Stock (and Buyer Class B Common
Stock, if applicable) purchased through the exercise of the Rights (with the
number of such shares not to exceed 108,500,000 in the aggregate), and (iii)
the Buyer shall issue the shares of Buyer Common Stock purchased through the
exercise of Stockholder Rights (with the number of such shares not to exceed
44,893,166 in the aggregate) and the Buyer shall effect the Buyer
Distribution.
1.4 Additional Action. The Surviving Corporation may, at any time after the
Effective Time, take any action, including executing and delivering any
document, in the name and on behalf of either the Company or the Merger
Subsidiary, in order to consummate the transactions contemplated by this
Agreement.
1.5 Conversion of Securities. At the Effective Time, by virtue of the Merger
and the Amended Plan and without any further action on the part of any person
or entity:
(a) Each share of common stock, $0.01 par value per share, of the Merger
Subsidiary issued and outstanding immediately prior to the Effective Time
shall remain issued and outstanding and shall evidence one share of common
stock, $0.01 par value per share, of the Surviving Corporation.
(b) Each share of capital stock of the Parent (collectively, the
"Company Stock") that is either outstanding or held in the treasury of the
Parent immediately prior to the Effective Time, each share of capital stock
of the Company, each share of capital stock of each of the other Debtors
held by any person or entity other than the Debtors, and each option,
warrant or other right issued by any of the Debtors to acquire any such
capital stock and outstanding immediately prior to the Effective Time shall
be canceled without payment of any consideration therefor and shall cease
to exist. Pursuant to Section 303 of the DGCL and the Amended Plan, holders
of the Company Stock shall have no statutory right of appraisal in
connection with the Merger, and such holders shall have no right to approve
or disapprove the Merger or this Agreement.
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1.6 Appointment of Exchange Agent; Distributions in Accordance with Amended
Plan.
(a) Prior to the Effective Time, the Buyer shall appoint the Exchange Agent
to effect, pursuant to and in accordance with the Amended Plan, the
distribution of Plan Shares in exchange for, and in satisfaction of, certain
Allowed Class 6 Claims.
(b) The Buyer and the Surviving Corporation shall cause the Exchange Agent,
promptly after the Effective Time, to commence the distribution of Plan Shares
(which Plan Shares are defined in the Amended Plan as the "Creditor Stock
Pool") to holders of Allowed Class 6 Claims in exchange for, and in
satisfaction of, such Allowed Class 6 Claims, all as provided in the Amended
Plan.
1.7 Distribution to Holders of Buyer Common Stock
(a) The Buyer shall conduct the Stockholder Rights Offering in accordance
with Section 4.22, and the Buyer shall, as soon as practicable after the
occurrence of the Effective Time, declare and make the Buyer Distribution.
(b) Notwithstanding the foregoing, no fractional Buyer Participation
Warrants shall be issued in the Buyer Distribution; in lieu thereof,
fractional Buyer Participation Warrants that would otherwise be issued in
the Buyer Distribution will be rounded up or down to the nearest whole
number of Buyer Participation Warrants.
1.8 Certificate of IncorporationI. From and after the Effective Time, the
Certificate of Incorporation of the Merger Subsidiary, as in effect
immediately prior to the Effective Time (except that the name of the
corporation set forth therein shall be changed to the name of the Company) and
as amended by the Certificate of Merger, shall be the Certificate of
Incorporation of the Surviving Corporation, until thereafter further amended
as provided by law and such Certificate of Incorporation.
1.9 By-laws. From and after the Effective Time, the By-laws of the Merger
Subsidiary, as in effect immediately prior to the Effective Time (except that
the name of the corporation set forth therein shall be changed to the name of
the Company), shall be the By-Laws of the Surviving Corporation, until
thereafter further amended as provided by law, the Certificate of
Incorporation of the Surviving Corporation and such By-laws.
1.10 Directors and Officers. From and after the Effective Time, the
directors and officers of the Merger Subsidiary immediately prior to the
Effective Time shall be and continue as directors and officers, respectively,
of the Surviving Corporation as of the Effective Time, until thereafter
changed in accordance with the Certificate of Incorporation and the By-Laws of
the Surviving Corporation.
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1.11 Payment of Administrative Claims and Expenses. At the Effective Time,
the Buyer shall cause the Surviving Corporation to pay or assume the allowed
administrative and priority claims and expenses of the Debtors, whether
allowed prior to or after the Effective Time (including, without limitation,
(a) the payment of obligations under the existing debtor-in-possession
financing facility (the "DIP Loan Agreement") and (b) the assumption of post-
petition trade payables arising in the Ordinary Course of Business (as defined
in Section 2.3)), as specified in the Amended Plan. The Buyer shall make
available to the Surviving Corporation any monies necessary for the Surviving
Corporation to make timely payment of such claims and expenses.
ARTICLE II
Representations and Warranties of the Parent and the Company
Each of the Parent and the Company represents and warrants to the Buyer that
the statements contained in this Article II are true and complete, except as
set forth in the disclosure schedule of the Company delivered to the Buyer
simultaneously with the execution and delivery hereof (the "Company Disclosure
Schedule"). The Company Disclosure Schedule shall be arranged in sections and
paragraphs corresponding to the numbered and lettered sections and paragraphs
contained in this Article II, and the disclosures in any section or paragraph
of the Company Disclosure Schedule shall qualify other sections or paragraphs
in this Article II only to the extent that it is reasonably clear from a
reading of the disclosure that such disclosure is applicable to such other
sections or paragraphs. For purposes of this Agreement, a "Debtor Material
Adverse Effect" shall mean a material adverse effect on the businesses, assets
(including licenses, franchises and other intangible assets), financial
condition, operating income and prospects of the Debtors, taken as a whole,
excluding any effect generally applicable to the economy or the industry in
which the Company conducts its business.
2.1 Organization, Qualification, Corporate Power and Authority.
(a) Each of the Debtors is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation. Each
of the Debtors is duly qualified to conduct business and is in good standing
under the laws of each jurisdiction (each such jurisdiction being set forth in
Section 2.1(a) of the Company Disclosure Schedule) in which the nature of its
businesses or the ownership or leasing of its properties requires such
qualification, other than where the failure to be so qualified would not in
the aggregate have a Debtor Material Adverse Effect. Subject to supervision by
the Bankruptcy Court in accordance with Title 11 of the United States Code
(the "Bankruptcy Code"), each of the Debtors has all requisite corporate power
and authority to carry on the businesses in which it is engaged and to own and
use the properties owned and used by it. Each of the Debtors has furnished to
the Buyer true and complete copies of its charter and by-laws, each as amended
and as in effect on the date hereof. Each of the Debtors has at all times
complied with, and is not in default under or in violation of, any provision
of its charter or by-laws, other than where the failure to so comply and such
defaults and violations would not in the aggregate have a Debtor Material
Adverse Effect.
(b) Subject to the entry of the Initial Merger Order (as defined in Section
4.4(a)), with respect to the Company Breakup Fee, the Buyer Breakup Fee and
the Buyer Reimbursement (each as defined in Article 4), and subject to the
entry of the Confirmation Order, with respect to the remaining terms and
conditions of this Agreement, each of the Parent and the Company has all
requisite power and authority to execute and deliver this Agreement. Subject
to the entry of the Initial Merger Order, with respect to the Company Breakup
Fee, the Buyer Breakup Fee and the Buyer Reimbursement, and subject to the
entry of the Confirmation Order, with respect to the remaining terms and
conditions of this Agreement, this Agreement has been (i) duly and validly
executed and delivered by the Parent and the Company and (ii) duly and validly
authorized by all necessary corporate action on the part of the Parent and the
Company. Subject to the entry of the Initial Merger Order, with respect to the
Company Breakup Fee, the Buyer Breakup Fee and the Buyer Reimbursement, and
subject to the entry of the Confirmation Order, with respect to the remaining
terms and conditions of this Agreement, this Agreement constitutes a valid and
binding obligation of the Parent and the Company enforceable against the
Parent and the Company in accordance with its terms.
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(c) Each of the Debtors has the requisite power and authority to execute and
file with the Bankruptcy Court the Amended Plan. The Amended Plan has been (i)
duly and validly executed by each Debtor and (ii) duly and validly authorized
by all necessary corporate action on the part of each Debtor. Upon the entry
of the Confirmation Order, the Amended Plan will constitute a valid and
binding obligation of each Debtor enforceable against each Debtor in
accordance with its terms.
2.2 Capitalization. On the Closing Date, after giving effect to the Amended
Plan (but immediately prior to the Merger), the authorized capital stock of
each Debtor will be as set forth in Section 2.2 of the Company Disclosure
Schedule. On the Closing Date, after giving effect to the Amended Plan, there
will be no outstanding Company Stock and no outstanding or authorized options,
warrants, rights, calls, convertible instruments, agreements or commitments to
which any of the Debtors is a party or which are binding upon any of the
Debtors providing for the issuance, disposition or acquisition of any of its
capital stock or stock appreciation, phantom stock or similar rights.
2.3 Noncontravention. Except for the applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), any applicable state
and foreign securities laws, the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), the Communications Act of 1934, as
amended (the "Communications Act"), and the regulations of the Federal
Communications Commission (the "FCC"), state public utility, telecommunication
or public service laws, and the Bankruptcy Code, the Confirmation Order and
the Amended Plan, none of the execution and delivery of this Agreement by the
Parent and the Company, the execution and filing with the Bankruptcy Court of
the Amended Plan by the Debtors or the consummation of the transactions
contemplated hereby or thereby will (a) conflict with or violate any provision
of the charter or by-laws of any Debtor; (b) require on the part of any Debtor
any filing with, or any permit, authorization, consent or approval of, any
court, arbitrational tribunal, administrative agency or commission or other
governmental or regulatory authority or agency (a "Governmental Entity"),
other than where the failure to make or obtain such filings, permits,
authorizations, consents or approvals would not in the aggregate have a Debtor
Material Adverse Effect or materially adversely affect the ability of the
Reorganized Debtors (which, for purposes of this Agreement, shall mean the
"Reorganized Debtors" as defined in the Amended Plan, together with "License
Co. L.L.C." as defined in the Amended Plan) to operate the business of the
Debtors following the Effective Time; (c) conflict with, result in a breach
of, constitute (with or without due notice or lapse of time or both) a default
under, result in the acceleration of, create in any party any right to
accelerate, terminate, modify or cancel, or require any notice, consent or
waiver under, any post-petition contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument of indebtedness, Security Interest (as defined below in this
Section 2.3) or other arrangement to which any Debtor is a party or by which
any Debtor is bound or to which any of their respective assets is subject or
any judgment, order, writ, injunction, decree, statute, rule or regulation
applicable to any Debtor or any of their respective properties or assets,
other than such conflicts, violations, breaches, defaults, accelerations,
terminations, modifications, cancellations or notices, consents or waivers as
would not in the aggregate have a Debtor Material Adverse Effect; or (d)
result in the imposition of any Security Interest upon any assets of any
Debtor. For purposes of this Agreement, "Security Interest" means any
mortgage, pledge, security interest, encumbrance, charge or other lien
(whether arising by contract or by operation of law), other than liens arising
in the ordinary course of business consistent with past custom and practice,
including with respect to frequency and amount (the "Ordinary Course of
Business").
2.4 Business Entities.
(a) Section 2.4(a) of the Company Disclosure Schedule sets forth a true and
complete list of each corporation, partnership, limited liability company or
other form of business association (a "Business Entity") in which any Debtor,
directly or indirectly, owns any equity interest or any security convertible
into or exchangeable for an equity interest (each a "Debtor Business Entity")
which is material to the Parent and the Company.
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(b) The Debtor Business Entities listed in Section 2.4(b) of the Company
Disclosure Schedule are the only Debtor Business Entities which have conducted
any operations, trade or businesses of the Debtors since January 30, 1997,
hold any Debtor Authorizations (as defined in Section 2.14(a)) or own any
assets necessary for the conduct of the businesses of the Debtors as currently
conducted.
(c) The Debtors own all the outstanding equity interests in each Debtor
Business Entity.
(d) No Debtor is in default under or in violation of any provision of its
organizational documents. To the knowledge of the Parent or the Company, all
the issued and outstanding equity interests of each Debtor Business Entity are
duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. On the Closing Date, after giving effect to the
effectiveness of the Amended Plan, all equity interests of each Debtor
Business Entity that are held of record or owned beneficially by the Parent,
the Company or another Debtor immediately prior to the Effective Time will be
held or owned by the respective Reorganized Debtors free and clear of any
restrictions on transfer (other than restrictions under the Securities Act and
state or foreign securities laws), claims, Security Interests, options,
warrants, rights, contracts, calls, commitments, equities and demands.
(e) There are no voting trusts, proxies or other agreements or
understandings with respect to the voting of any equity interests of any
Debtor Business Entity to which any Debtor is a party or by which it is bound,
or, to the Parent's or the Company's knowledge, any other such trusts,
proxies, agreements or understandings.
2.5 Financial Statements; Accounts Receivable; Inventory.
(a) The Debtors have previously provided to the Buyer (i) the audited
consolidated balance sheets and statements of operations and changes in
stockholders' equity and cash flows of the Company as of December 31, 1996 and
1997 and for the years ended December 31, 1995, 1996 and 1997 (the "Audited
Company Financial Statements") and (ii) the unaudited consolidated balance
sheet (which indicates separately liabilities arising on or after January 30,
1997 (the "Filing Date")) (the "June 30 Unaudited Company Balance Sheet") and
the unaudited consolidated statements of operations and changes in
stockholders' equity and cash flows of the Company as of and for the six-month
period ended June 30, 1998 (the "Company Balance Sheet Date"). Such financial
statements (collectively, the "Company Financial Statements"), (i) comply as
to form in all material respects with applicable accounting requirements and
the published rules and regulations of the U. S. Securities and Exchange
Commission (the "SEC") with respect thereto; (ii) have been prepared in
accordance with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods covered thereby
(except as may be indicated therein or in the notes thereto and, in the case
of interim financial statements, as permitted by Form 10-Q under the Exchange
Act); (iii) fairly present the consolidated financial condition, results of
operations and cash flows of the Company as of the respective dates thereof
and for the periods referred to therein; and (iv) are consistent with the
books and records of the Company, subject, in the case of clauses (i), (ii)
and (iii), (a) to the paragraph in the report of independent auditors on the
Audited Company Financial Statements describing conditions that raise
substantial doubt about the Company's ability to continue as a going concern,
and (b) to the Company Financial Statements not including any adjustments to
reflect the possible future effects on the recoverability and classification
of assets or the amounts and classification of liabilities that may result
from the outcome of these uncertainties.
(b) The accounts receivable of the Debtors reflected on the June 30
Unaudited Company Balance Sheet, and those arising since the date of the June
30 Unaudited Company Balance Sheet, are valid receivables subject to no set-
offs or counterclaims, net of a reserve for bad debts, which reserve is
reflected on the June 30 Unaudited Company Balance Sheet. The inventories of
the Debtors reflected on the June 30 Unaudited Company Balance Sheet are of a
quality and quantity useable and/or saleable in the Ordinary Course of
Business, except as written down to net realizable value on the June 30
Unaudited Company Balance Sheet. All inventory shown on the June 30 Unaudited
Company Balance Sheet has been priced at the lower of cost or net realizable
value.
2.6 Absence of Certain Changes. Since the Company Balance Sheet Date, (a)
there has not been any Debtor Material Adverse Effect, nor has there occurred
any event or development that would have a Debtor Material Adverse Effect, and
(b) no Debtor has taken any action that would be prohibited by subsection (a)
of
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Section 4.5 below if taken from and after the date of this Agreement. Except
as set forth in amendments thereto currently being prepared that decrease the
Debtors' liabilities thereunder, the Statement of Affairs and Schedules of
Assets and Liabilities and Executory Contracts of the Debtors filed with the
Bankruptcy Court in the Chapter 11 Proceeding, as amended, includes a list
which is true and complete in all material respects of all the material
creditors, whether secured or unsecured, of the Debtors at the Filing Date.
2.7 Undisclosed Liabilities. None of the Debtors has any liability (whether
known or unknown, whether absolute or contingent, whether liquidated or
unliquidated, whether due or to become due and whether arising prior to or
subsequent to the Filing Date), except for (a) liabilities that will be fully
discharged in the Chapter 11 Proceeding at the Effective Time, paid from the
Plan Cash and the Plan Shares in accordance with the terms of the Amended Plan
or, with respect to obligations arising under the DIP Loan Agreement,
otherwise paid in full in cash; (b) liabilities arising after the Filing Date
separately shown or expressly reserved for separately on the June 30 Unaudited
Company Balance Sheet; (c) liabilities that have arisen since the Company
Balance Sheet Date in the Ordinary Course of Business of the Debtors and that
are similar in nature and amount to the liabilities that arose during the
comparable period of time in the immediately preceding fiscal period; and (d)
liabilities incurred in the Ordinary Course of Business of the Debtors that
are not required by GAAP to be reflected on the June 30 Unaudited Company
Balance Sheet and that are not in the aggregate material. Section 2.7 of the
Company Disclosure Statement sets forth all amounts due under the Dial Page
Indenture at June 30, 1998.
2.8 Tax Matters.
(a) (i) Each of the Debtors has filed all Tax Returns (as defined below in
this Section 2.8(a)) that it was required to file, and all such Tax Returns
were true and complete in all material respects. (ii) No Debtor is or has ever
been a member of a group of corporations with which it has filed (or been
required to file) consolidated, combined or unitary Tax Returns, other than a
group of which only the Debtors are or were members. (iii) The Debtors have
paid all Taxes (as defined below in this Section 2.8(a)) of the Debtors that
were due and payable prior to the date hereof. (iv) All Taxes that any Debtor
is or was required by law to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper
Governmental Entity. For purposes of this Agreement, "Taxes" means all taxes,
charges, fees, levies or other similar assessments or liabilities, including,
without limitation, income, gross receipts, ad valorem, premium, value-added,
excise, real property, personal property, sales, use, transfer, withholding,
employment, payroll and franchise taxes imposed by the United States of
America or any state, local or foreign government, or any agency thereof, or
other political subdivision of the United States or any such government, and
any interest, fines, penalties, assessments or additions to tax resulting
from, attributable to or incurred in connection with any tax or any contest or
dispute thereof. For purposes of this Agreement, "Tax Returns" means all
reports, returns, declarations, statements or other information required to be
supplied to a taxing authority in connection with Taxes.
(b) (i) The Debtors have delivered or otherwise made available to the Buyer
true and complete copies of all federal income Tax Returns for the "affiliated
group" (as defined in Section 1504(a) of the Code) of which the Parent is the
common parent and the Debtors are members (the "Company Group"), together with
all related examination reports and statements of deficiency, for all periods
commencing on or after December 1, 1993 and, to the extent in the possession
of the Debtors, true and complete copies of the portion of the federal income
Tax Returns of any member of a Debtor Affiliated Group (as defined below),
together with all related examination reports and statements of deficiency,
relating to the activities of any Debtor for all Debtor Affiliated Periods (as
defined below). For purposes of this Section 2.8, "Debtor Affiliated Group"
means each group of corporations with which any Debtor has filed (or was
required to file) consolidated, combined, unitary or similar Tax Returns and
"Debtor Affiliated Period" means a period in which a Debtor was a member of a
Debtor Affiliated Group. (ii) The federal income Tax Returns of the Company
Group have been audited by the Internal Revenue Service or are closed by the
applicable statute of limitations for all taxable years through the taxable
year specified in Section 2.8(b) of the Company Disclosure Schedule. (iii) The
Debtors have made available to the Buyer true and complete copies of all other
Tax Returns of the Debtors in the possession of the Debtors, together with all
related examination reports and statements of deficiency, and, to the extent
in the possession of the Debtors, true and complete copies of the portion of
all other Tax Returns of any member of a Debtor Affiliated Group, together
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with all related examination reports and statements of deficiency, relating to
the activities of any Debtor for all Debtor Affiliated Periods. (iv) No
examination or audit of any Tax Return of any Debtor by any Governmental
Entity is currently in progress, threatened or contemplated. (v) No Debtor has
been informed by any jurisdiction that the jurisdiction believes that the
Debtor was required to file any Tax Return that has not since been timely
filed or, if not timely filed, with respect to which an assessed amount has
not since been paid. (vi) No Debtor has waived any statute of limitations with
respect to Taxes or agreed to an extension of time with respect to a Tax
assessment or deficiency which waiver or extension of time is still in effect.
(c) No Debtor (i) is a "consenting corporation" within the meaning of
Section 341(f) of the Code and none of the assets of the Debtors is subject to
an election under Section 341(f) of the Code; (ii) has made any payments, is
obligated to make any payments, or is a party to any agreement that could
obligate it to make any payments that may be treated as an "excess parachute
payment" under Section 280G of the Code; (iii) has any actual or potential
liability for any Taxes of any person (other than the Debtors) under Treasury
Regulation Section 1.1502-6 (or any similar provision of federal, state,
local, or foreign law), or as a transferee or successor, by contract, or
otherwise; or (iv) is or has been required to make a basis reduction pursuant
to Treasury Regulation Section 1.1502-20(b) or Treasury Regulation Section
1.337(d)-2(b) other than a reduction required by reason of the transactions
contemplated by this Agreement, if any.
(d) None of the assets of any Debtor: (i) is property that is required to be
treated as being owned by any other person pursuant to the provisions of
former Section 168(f)(8) of the Code; (ii) is "tax-exempt use property" within
the meaning of Section 168(h) of the Code; or (iii) directly or indirectly
secures any debt the interest on which is tax exempt under Section 103(a) of
the Code.
(e) No Debtor will have undergone a change in its method of accounting
requiring an inclusion in its taxable income of an adjustment pursuant to
Section 481(c) of the Code for any taxable period beginning on or after the
Closing Date other than a change occurring by reason of the transactions
contemplated by this Agreement, if any.
(f) No state or federal "net operating loss" of the Debtors determined as of
the Closing Date is subject to limitation on its use pursuant to Section 382
of the Code or comparable provisions of state law as a result of any
"ownership change" within the meaning of Section 382(g) of the Code occurring
prior to the Closing Date.
(g) Section 2.8(g) of the Company Disclosure Schedule sets forth in
reasonable detail the following information with respect to the Debtors as of
the most recent practicable date: (i) the basis of the Debtors in their
assets; (ii) the basis of the stockholder(s) of the Debtors (other than the
Company) in its stock (or the amount of any "excess loss account"); (iii) the
amount of any net operating loss, net capital loss, unused investment or other
credit, unused foreign tax, or excess charitable contribution allocable to the
Debtors; and (iv) the amount of any deferred gain or loss allocable to the
Debtors arising out of any "deferred intercompany transaction."
(h) Neither the Parent nor the Company has been a United States real
property holding corporation within the meaning of Section 897(c)(2) of the
Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the
Code.
2.9 Tangible Assets. The Debtors own or lease all tangible assets necessary
for the conduct of their respective businesses as presently conducted. Each
such tangible asset is free from material defects, has been maintained in
accordance with normal industry practice, is in good operating condition and
repair (subject to normal wear and tear) and is suitable for the purposes for
which it is presently used, other than where the failures or defects would not
in the aggregate have a Debtor Material Adverse Effect.
2.10 Owned Real Property. The Company has previously made available to the
Buyer a true and complete listing of all material real property that has been
owned by the Debtors at any time on or after January 30, 1997 (other than the
real property that the Debtors have agreed to sell pursuant to the Purchase
Agreement dated as of July 7, 1998 among the Debtors and Pinnacle Towers Inc.
("Pinnacle") (as approved by order of the Bankruptcy Court entered on August
10, 1998, and as such agreement may be amended in accordance with the terms
hereof
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and thereof and in accordance with the terms of such order of the Bankruptcy
Court, the "Debtor Tower Agreement"). With respect to each such parcel of real
property which is currently owned by the Debtors, the identified owner has
good record and marketable title to such parcel, free and clear of any
Security Interest, easement, covenant or other restriction, except for
Security Interests in favor of the lenders under the DIP Loan Agreement, and
Security Interests, easements, covenants and other restrictions which do not
materially impair the use, occupancy or value of such parcel as presently used
in the Debtors' businesses.
2.11 Intellectual Property.
(a) The Debtors own, license or otherwise have the legally enforceable right
to use all patents, trademarks, trade names, service marks, copyrights, and
any applications for such patents, trademarks, trade names, service marks and
copyrights, schematics, technology, know-how, computer software programs or
applications and tangible or intangible proprietary information or material
used in the operation of the businesses of the Debtors or necessary for the
operation of the businesses of the Debtors as presently conducted by the
Debtors (collectively, "Debtors' Intellectual Property"). Each such item of
Debtors' Intellectual Property owned or available for use by the Debtors
immediately prior to Closing will be owned or available for use by the
Reorganized Debtors and the Buyer on substantially similar terms and
conditions immediately following the Closing. No other person or entity has
any rights to any of the Debtors' Intellectual Property, and no other person
or entity is infringing, violating or misappropriating any of the Debtors'
Intellectual Property used in the businesses of the Debtors, other than such
infringements, violations or misappropriations as would not in the aggregate
have a Debtor Material Adverse Effect.
(b) The business, operations and activities of each Debtor as presently
conducted or as conducted at any time within the two years prior to the date
of this Agreement have not materially infringed or violated, or constituted a
material misappropriation of, and do not now materially infringe or violate,
or constitute a material misappropriation of, any intellectual property rights
of any other person or entity. Since January 30, 1997, no Debtor has received
any written, or to its knowledge, verbal, complaint, claim or notice alleging
any such infringement, violation or misappropriation which has not been
disposed of through a settlement agreement described in Section 2.11(b) of the
Company Disclosure Schedule.
(c) Section 2.11(c) of the Company Disclosure Schedule sets forth each
patent or trademark registration which has been issued to or is owned by any
Debtor with respect to any Debtors' Intellectual Property, identifies each
pending patent or trademark application or application for registration which
any Debtor has made or which any Debtor owns with respect to any Debtors'
Intellectual Property, identifies, with respect to each such patent or
trademark registration or application: (i) the jurisdiction or jurisdictions
where such filings have been made; and (ii) an estimate of the aggregate
application, renewal, continuation or other fees payable with respect to such
patent or trademark registrations and applications within six months of the
date of this Agreement, and identifies each license or other agreement
pursuant to which any Debtor has granted (other than in the Ordinary Course of
Business) any rights to any third party with respect to any Debtors'
Intellectual Property. The Debtors have delivered or otherwise made available
to the Buyer true and complete copies of all such licenses and agreements
(each as amended to date) and have made available to the Buyer true and
complete copies of all other written documentation evidencing ownership of,
and any claims or disputes relating to, each such item, as well as all patents
and trademark registrations and applications.
(d) Section 2.11(d) of the Company Disclosure Schedule sets forth each item
of Debtors' Intellectual Property (other than commercially available software
generally available to the public at a license fee of less than $10,000) used
by any Debtor in the operation of its business that is owned by a party other
than the party using it. The Debtors have delivered or otherwise made
available to the Buyer true and complete copies of all licenses, sublicenses
or other agreements (each as amended to date) pursuant to which any Debtor
uses such Debtors' Intellectual Property, all of which are set forth in
Section 2.11(d) of the Company Disclosure Schedule.
(e) The Debtors have previously delivered or otherwise made available to the
Buyer true and complete copies of all internal reports, investigations,
analyses or other documents concerning the Debtors' Year 2000 compliance.
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2.12 Real Property Leases. Section 2.12 of the Company Disclosure Schedule
lists all real property (other than tower sites) leased or subleased to the
Debtors, indicating, in each case, the term of the lease and any extension and
expansion options and the rent payable under such lease. The Debtors have made
available to the Buyer true and complete copies of all such leases and
subleases (each as amended to date), together with true and complete lists of
the tower sites omitted from Section 2.12 of the Company Disclosure Schedule.
With respect to each such lease and sublease:
(a) the lease or sublease is legal, valid, binding, enforceable and in
full force and effect, subject to the effect of the Chapter 11 Proceeding
and bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and except as the availability
of equitable remedies may be limited by general principles of equity;
(b) if assumed pursuant to the Amended Plan, the lease or sublease will
continue to be legal, valid, binding, enforceable and in full force and
effect immediately following the Closing with the same terms as in effect
immediately prior to the Closing, subject to the effect of bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and except as the availability of equitable
remedies may be limited by general principles of equity;
(c) none of the Debtors, nor, to the Parent's or the Company's knowledge,
any other party to the lease or sublease, is in material breach or default,
and no event (other than (i) the nonpayment of rent or other charges by the
Debtors with respect to periods prior to the Filing Date or (ii) the
commencement of the Chapter 11 Proceeding) has occurred which, with notice
or lapse of time, would constitute a material breach or default by the
Debtors or, to the Parent's or the Company's knowledge, by any such other
party, or permit termination, modification or acceleration thereunder;
(d) to the knowledge of the Debtors, there are no material disputes, oral
agreements or forbearance programs in effect as to the lease or sublease;
(e) none of the Debtors has assigned, transferred, conveyed, mortgaged,
deeded in trust or encumbered any interest in the leasehold or
subleasehold;
(f) all facilities leased or subleased thereunder are supplied with
utilities and other services necessary for the operation of said
facilities; and
(g) other than in the Ordinary Course of Business, no construction,
alteration or other leasehold improvement work with respect to the lease or
sublease remains to be paid for or performed by the Debtors (except amounts
owing for periods prior to the Filing Date).
2.13 Contracts.
(a) Section 2.13 of the Company Disclosure Schedule sets forth a true and
complete list of all written arrangements (including, without limitation,
written agreements) to which any Debtor is a party which, pursuant to the
rules and regulations of the SEC, would have to be attached as exhibits as
material contracts to an Annual Report on Form 10-K filed by the Parent or the
Company if such Annual Report were filed on the date of this Agreement.
(b) The Debtors have delivered or otherwise made available to the Buyer a
true and complete copy of each written arrangement (each as amended to date)
required to be listed in Section 2.13 of the Company Disclosure Schedule. With
respect to each written arrangement so listed: (i) as to a prepetition
agreement susceptible of assumption, upon the assumption thereof by the
Debtors pursuant to Section 365 of the Bankruptcy Code as specified in the
Amended Plan, the written arrangement will continue to be legal, valid,
binding, enforceable and in full force and effect immediately following the
Closing with the same terms as in effect immediately prior to the Closing,
subject to the effect of bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and except as
the availability of equitable remedies may be limited by general principles of
equity; and (ii) none of the Debtors nor, to the Parent's or the Company's
knowledge, any other party, is in material breach or default, and no event
(other than (x) the failure by the Debtor to pay an
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amount due thereunder with respect to goods or services rendered prior to the
Filing Date, (y) the failure by the Debtor to render goods or services
thereunto prior to the Filing Date or (z) the commencement of the Chapter 11
Proceeding) has occurred which with notice or lapse of time would constitute a
material breach or default by the Debtors or, to the Parent's or the Company's
knowledge, by any such other party, or permit termination, modification or
acceleration, under the written arrangement. None of the Debtors is a party to
any oral contract, agreement or other arrangement which, if reduced to written
form, would be required to be listed in Section 2.13 of the Company Disclosure
Schedule under the terms of this Section 2.13. None of the Debtors is
restricted by any arrangement from carrying on its business anywhere in the
United States.
2.14 Licenses and Authorizations.
(a) The Debtors hold all licenses, permits, certificates, franchises,
ordinances, registrations, or other rights, applications and authorizations
filed with, granted or issued by, or entered by any Governmental Entity,
including, without limitation, the FCC or any state or local regulatory
authorities or any state or local public service commission or public utility
commission (each, a "State Authority") asserting jurisdiction over any Debtor
or its businesses or assets, that are required for the conduct of their
businesses as currently being conducted (each as amended to date)
(collectively, the "Debtor Authorizations"), other than such licenses,
permits, certificates, franchises, ordinances, registrations or other rights,
applications and authorizations the absence of which would not in the
aggregate materially impair the ability of either the Parent or the Company to
consummate the transactions contemplated hereby or of the Reorganized Debtors
to own and operate the properties, assets and businesses of the Debtors
following the Closing. Section 2.14(a) of the Company Disclosure Schedule
contains a true and complete list of such Debtor Authorizations.
(b) Section 2.14(b) of the Company Disclosure Schedule contains a true and
complete list of (i) each application of the Debtors pending before the FCC
(collectively, the "Debtor FCC Applications"); (ii) each FCC permit and FCC
license which is not a Debtor Authorization but in which any Debtor, directly
or indirectly, holds an interest, including as a stakeholder in the licensee
(collectively, the "Indirect Debtor Authorizations"); and (iii) all licenses,
certificates, consents, permits, approvals and authorizations for the benefit
of the Debtors pending before any State Authority (collectively, the "Debtor
State Applications"). The Debtor Authorizations, the Debtor FCC Applications,
the Indirect Debtor Authorizations and the Debtor State Applications
(collectively, the "Debtor Licenses and Authorizations") are the only federal,
state or local licenses, certificates, consents, permits, approvals and
authorizations that are required for the conduct of the business and
operations of the Debtors as presently conducted, other than such consents,
permits, approvals or authorizations the absence of which would not in the
aggregate materially impair the ability of either the Parent or the Company to
either consummate the transactions contemplated hereby or of the Reorganized
Debtors to own and operate the properties, assets and businesses of the
Debtors following the Closing.
(c) The Debtor Authorizations and, to the Parent's and the Company's
knowledge, the Indirect Debtor Authorizations are in full force and effect
and, other than Security Interests in favor of the lenders under the DIP Loan
Agreement and the Pre-Petition Lenders, have not been pledged or otherwise
encumbered, assigned, suspended, modified in any material adverse respect,
canceled or revoked, and each Debtor has operated in compliance with all terms
thereof or any renewals thereof applicable to it, other than where the failure
to so comply would not in the aggregate have a Debtor Material Adverse Effect
or materially impair the ability of either the Parent or the Company to
consummate the transactions contemplated hereby or of the Reorganized Debtors
to own and operate the properties, assets and businesses of the Debtors
following the Closing. No event has occurred with respect to any of the Debtor
Authorizations which permits, or after notice or lapse of time or both would
permit, revocation or termination thereof or would result in any other
material impairment of the rights of the holder of any such Debtor
Authorizations. To the knowledge of the Parent or the Company, there is not
pending any application, petition, objection or other pleading with the FCC,
any State Authority or any similar body having jurisdiction or authority over
the operations of the Debtors which questions the validity of or contests any
Debtor Authorization or which could reasonably be expected, if accepted or
granted, to result in the revocation, cancellation, suspension or any
materially adverse modification of any Debtor Authorization.
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(d) Except for approval by the Bankruptcy Court or by the FCC as
contemplated by Section 4.15 or as set forth in Section 2.14(d) of the Company
Disclosure Schedule, no permit, consent, approval, authorization,
qualification or registration of, or declaration to or filing with, any
Governmental Entity is required to be obtained or made by any Debtor in
connection with the transfer or deemed transfer of the Debtor Licenses and
Authorizations to the Buyer as a result of the consummation of the
transactions contemplated hereby, except where the failure to obtain or make
such permit, consent, approval, authorization, qualification, registration,
declaration or filing would not materially impair the ability of the Company
to consummate the transactions contemplated hereby or the Reorganized Debtors
to own and operate the properties, assets and businesses of the Debtors
following the Closing.
2.15 Litigation. Except as to claims arising prior to the Filing Date that
are within the jurisdiction of the Bankruptcy Court or are to be resolved in
the Chapter 11 Proceeding or by force of the discharge granted to the Debtors
in connection with the Chapter 11 proceeding, as of the date of this
Agreement: (a) there is no action, suit, proceeding or investigation to which
any Debtor is a party (either as a plaintiff or defendant) pending or, to the
Parent's or the Company's knowledge, threatened before any court, Governmental
Entity or arbitrator, and, to the Parent's or the Company's knowledge, there
is no basis for any such action, suit, proceeding or investigation; (b) none
of the Debtors nor, to the Parent's or the Company's knowledge, any officer,
director or employee of any Debtor has been permanently or temporarily
enjoined by any order, judgment or decree of any court or Governmental Entity
from engaging in or continuing to conduct the business of the Debtors; and (c)
no order, judgment or decree of any court or Governmental Entity has been
issued in any proceeding to which any Debtor is or was a party or, to the
Parent's or the Company's knowledge, in any other proceeding, that enjoins or
requires any Debtor to take action of any kind with respect to its businesses,
assets or properties. Except for the regulatory matters addressed in Section
2.14, none of the actions, suits, proceedings or investigations listed in
Section 2.15 of the Company Disclosure Schedule, individually or collectively,
if determined adversely to the interests of the Debtors, would have a Debtor
Material Adverse Effect.
2.16 Employees.
(a) Section 2.16(a) of the Company Disclosure Schedule sets forth a true and
complete list as of the most recent practicable date of all employment
contracts or agreements relating to employment to which any of the Debtors is
a party which are not terminable by the Debtors without penalty upon less than
30 or fewer days' notice.
(b) There are no collective bargaining agreements to which any of the
Debtors is a party. No Debtor has experienced any strikes, grievances, claims
of unfair labor practices or other collective bargaining disputes and, to the
Parent's or the Company's knowledge, no organizational effort is presently
being made or threatened by or on behalf of any labor union with respect to
its employees. To the knowledge of the Parent or the Company, there is no
reasonable basis to believe that any Debtor will be subject to any labor
strike or other organized work force disturbance following the Closing.
2.17 Employee Benefits.
(a) Section 2.17(a) of the Company Disclosure Schedule contains a true and
complete list of all Employee Benefit Plans (as defined below in this Section
2.17(a)) maintained, or contributed to, by any Debtor or any ERISA Affiliate
(as defined below in this Section 2.17(a)) of any Debtor ("Company Employee
Benefit Plans"). For purposes of this Agreement, "Employee Benefit Plan" means
any "employee pension benefit plan" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")), any
"employee welfare benefit plan" (as defined in Section 3(l) of ERISA), and any
other material written or oral plan, agreement or arrangement involving direct
or indirect employee compensation, including, without limitation, insurance
coverage, severance benefits, disability benefits, pension, retirement plans,
profit sharing, deferred compensation, bonuses, stock options, stock purchase,
phantom stock, stock appreciation or other forms of incentive compensation or
post-retirement compensation. For purposes of this Agreement, "ERISA
Affiliate" means any member of (i) a controlled group of corporations (as
defined in Section 414(b) of the Code); (ii) a
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group of trades or businesses under common control (as defined in Section
414(c) of the Code); or (iii) an affiliated service group (as defined under
Section 414(m) of the Code or the regulations under Section 414(o) of the
Code). True and complete copies of (i) all Company Employee Benefit Plans that
have been reduced to writing; (ii) written summaries of all unwritten Company
Employee Benefit Plans; (iii) all trust agreements, insurance contracts and
summary plan descriptions related to the Company Employee Benefit Plans; (iv)
the annual report filed on IRS Form 5500, 5500C or 5500R, if applicable, for
the most recent plan year for each Company Employee Benefit Plan; and (v) the
most recent qualification letter issued by the Internal Revenue Service with
respect to each Company Employee Benefit Plan that is intended to qualify
under Section 401(a) of the Code, have been made available to the Buyer. Each
Company Employee Benefit Plan has been administered in accordance with its
terms in all material respects, and each Debtor and, to the Parent's or the
Company's knowledge, each ERISA Affiliate of any Debtor has in all material
respects met its obligations (if any) with respect to each Company Employee
Benefit Plan and has made all required contributions (if any) thereto. The
Debtors and all Company Employee Benefit Plans are in compliance in all
material respects with the currently applicable provisions (if any) of ERISA,
the Code and other applicable federal, state and foreign laws and the
regulations thereunder. Each Company Employee Benefit Plan that is intended to
qualify under Section 401(a) of the Code is so qualified. Each Company
Employee Benefit Plan that is required to satisfy Section 401(k)(3) or Section
401(m)(2) of the Code has been reviewed for compliance with, and has satisfied
the requirements of, said Sections for each plan year ending prior to the
Closing.
(b) To the Parent's or the Company's knowledge, as of the date of this
Agreement, there are no inquiries or investigations by any Governmental
Entity, termination proceedings or other claims (except claims for benefits
payable in the normal operation of the Company Employee Benefit Plans and
proceedings with respect to qualified domestic relations orders), suits or
proceedings against or involving any Company Employee Benefit Plan or
asserting any rights or claims to benefits under any Company Employee Benefit
Plan.
(c) Neither any Debtor nor, to the Parent's or the Company's knowledge, any
ERISA Affiliate of any Debtor has ever maintained a Company Employee Benefit
Plan subject to Section 412 of the Code, Part 3 of Subtitle B of Title I of
ERISA, or Title IV of ERISA. At no time has any Debtor or, to the Parent's or
the Company's knowledge, any ERISA Affiliate of any Debtor been obligated to
contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of
ERISA) that is subject to Title IV of ERISA. No act or omission has occurred
and no condition exists with respect to any Company Employee Benefit Plan that
would subject any Debtor or, to the Company's knowledge, any ERISA Affiliate
of any Debtor to any material fine, penalty, Tax or liability of any kind
imposed under ERISA or the Code. No prohibited transaction (as defined in
Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to
any Company Employee Benefit Plan that is subject to ERISA or the Code. No
Company Employee Benefit Plan, plan documentation or agreement, summary plan
description or other written communication distributed generally to employees
by its terms prohibits any Debtor from amending or terminating any such
Company Employee Benefit Plan and any Company Employee Benefit Plan may be
terminated without liability to any Debtor or the Buyer, except for benefits
accrued through the date of termination. Except as may be required by Part 6
of Title I of ERISA or similar state laws regarding continuation of benefits,
no former employees participate in any employee welfare benefit plans listed
in Section 2.17(a) of the Company Disclosure Schedule beyond the month of the
termination of his employment. No Company Employee Benefit Plan includes in
its assets any securities issued by the Debtors. No Company Employee Benefit
Plan has been subject to tax under Section 511 of the Code.
(d) Section 2.17(d) of the Company Disclosure Schedule lists each: (i)
agreement with any director, executive officer or other key employee of the
Debtors (A) the benefits of which are contingent, or the terms of which are
altered, upon the occurrence of a transaction involving the Debtors of the
nature of any of the transactions contemplated by this Agreement, (B)
providing any term of employment or compensation guarantee, or (C) providing
severance benefits or other benefits upon the consummation of any transaction
or after the termination of employment of such director, executive officer or
key employee; (ii) agreement, plan or arrangement under which any person may
receive a payment from any Debtor that may be subject to the tax imposed by
Section 4999 of the Code or may constitute a "parachute payment" under Section
280G of the Code;
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and (iii) agreement or plan binding any Debtor, including, without limitation,
any stock option plan, stock appreciation right plan, restricted stock plan,
stock purchase plan, severance benefit plan, or any Company Employee Benefit
Plan, any of the benefits of which will be increased, or the vesting of the
benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the
benefits of which will be calculated on the basis of any of the transactions
contemplated by this Agreement.
2.18 Environmental Matters.
Except for Sections 2.5(a), 2.23 and 2.24, this Section 2.18 contains the
exclusive representations and warranties of the Parent and the Company
concerning environmental matters, including but not limited to Environmental
Laws and Materials of Environmental Concern (as both of those terms are
defined below in this Section 2.18). Each of the Parent and the Company
represents and warrants as follows:
(a) Each of the Debtors is in compliance with all applicable Environmental
Laws (as defined below in this Section 2.18(a)), other than where the failure
to be in compliance would not in the aggregate have a Debtor Material Adverse
Effect. There is no pending or, to the Parent's or the Company's knowledge,
threatened civil or criminal litigation, written notice of violation, formal
administrative proceeding, or written notice of investigation or inquiry or
written information request by any Governmental Entity, relating to any
Environmental Law involving any Debtors or their respective assets and
properties. For purposes of this Agreement, "Environmental Law" means any
foreign, federal, state or local law, statute, permits, orders, rule or
regulation or the common or decisional law relating to the environment or
occupational health and safety, including, without limitation, any statute,
regulation or order pertaining to (i) treatment, storage, disposal, generation
and transportation of industrial, toxic or hazardous substances or solid or
hazardous waste; (ii) air, water and noise pollution; (iii) groundwater and
soil contamination; (iv) the release or threatened release into the
environment of industrial, toxic or hazardous substances, or solid or
hazardous waste, including, without limitation, emissions, discharges,
injections, spills, escapes or dumping of pollutants, contaminants or
chemicals; (v) the protection of wildlife, marine sanctuaries and wetlands,
including, without limitation, all endangered and threatened species; (vi)
storage tanks, vessels and containers; (vii) underground and other storage
tanks or vessels, abandoned, disposed or discarded barrels, containers and
other closed receptacles; (viii) health and safety of employees and other
persons; and (ix) manufacture, processing, use, distribution, treatment,
storage, disposal, transportation or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or oil or petroleum
products or solid or hazardous waste. For the purposes of this Agreement, the
terms "release" and "environment" shall have the meaning set forth in the
United States Comprehensive Environmental Compensation, Liability and Response
Act of 1980 ("CERCLA").
(b) There have been no releases of any Materials of Environmental Concern
(as defined below in this Section 2.18(b)) into the environment at any parcel
of real property or any facility formerly or currently owned, operated or
controlled by any Debtor for which any Debtor may be liable under any
Environmental Law of the jurisdiction in which such property or facility is
located, other than such releases as would not in the aggregate have a Debtor
Material Adverse Effect. With respect to any such releases of Materials of
Environmental Concern, the Debtor has given all required notices (if any) to
Governmental Entities (copies of which have been provided to the Buyer). There
have been no releases of Materials of Environmental Concern at parcels of real
property or facilities other than those owned, operated or controlled by the
Debtors that could reasonably be expected to have an impact on the real
property or facilities owned, operated or controlled by the Debtors, other
than such impacts as would not in the aggregate have a Debtor Material Adverse
Effect. For purposes of this Agreement, "Materials of Environmental Concern"
means any chemicals, pollutants or contaminants, hazardous substances (as such
term is defined under CERCLA or any Environmental Law), solid wastes and
hazardous wastes (as such terms are defined under the United States Resources
Conservation and Recovery Act or any Environmental Law), toxic materials, oil
or petroleum and petroleum products, or any other material subject to
regulation under any Environmental Law, except for normal office and cleaning
products.
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(c) Set forth in Section 2.18 of the Company Disclosure Schedule is a list
of all environmental reports, investigations and audits which to the knowledge
of the Parent or the Company (whether conducted by or on behalf of the Debtors
or a third party, and whether done at the initiative of the Debtors or
directed by a Governmental Entity or other third party) were issued during the
past five years relating to premises formerly or currently owned, operated or
controlled by the Debtors. True and complete copies of any such report, or the
results of any such investigation or audit, which to the knowledge of the
Parent or the Company are in the possession of the Parent or the Company (or
can be obtained by the Company through reasonable efforts), have been
delivered or otherwise made available to the Buyer.
(d) Neither the Parent nor the Company has any knowledge of any material
environmental liability of the solid and hazardous waste transporters and
treatment, storage and disposal facilities that have been utilized by Debtors.
(e) The Debtors hold all Environmental Authorizations (as defined below in
this Section 2.18(e)) that are legally required for the conduct of their
businesses as currently conducted, other than where the failure to hold such
Environmental Authorizations would not in the aggregate have a Debtor Material
Adverse Effect, and such Environmental Authorizations (if any) are listed in
Section 2.18 of the Company Disclosure Schedule. For purposes of this
Agreement, the term "Environmental Authorization" means any license, permit,
certificate, or other authorization from a Governmental Entity under any
applicable Environmental Law. Each of the Debtors is and has been in
compliance with all such Environmental Authorizations, other than such
noncompliance as would not in the aggregate have a Debtor Material Adverse
Effect.
(f) None of the transactions contemplated by this Agreement or the Amended
Plan will require the Company or the Debtors to comply with an Environmental
Property Transfer Act (as defined below in this Section 2.18(f)). For purposes
of this Agreement, the term "Environmental Property Transfer Act" means any
applicable law (including rules, regulations and administrative orders
thereunder) of any federal, state, local or foreign government that requires
any notification or disclosure of environmental conditions in connection with
the transfer, sale, lease or closure of any property.
2.19 Legal Compliance. Each Debtor and the conduct and operation of its
respective business is and has been in compliance with each law (including
rules, regulations and administrative orders thereunder) of any federal,
state, local or foreign government, or any Governmental Entity, that (a)
affects or relates to this Agreement or the transactions contemplated hereby
or (b) is applicable to the Debtors or their respective businesses, other than
where the failure to be or to have been in compliance would not in the
aggregate have a Debtor Material Adverse Effect or materially impair the
ability of the Parent or the Company to consummate the transactions
contemplated hereby or the Reorganized Debtors to own and operate the
properties, assets and businesses of the Debtors following the Closing.
2.20 Subscriber Cancellations; Suppliers. The Debtors have previously
delivered or otherwise made available to the Buyer true and complete reports
of the number of paging units the Debtors had in service on a quarterly basis
for its most recent fiscal year and the interim period covered by the Company
Financial Statements, and the number of subscriber cancellations the Debtors
had for each such period. To the knowledge of the Parent or the Company, no
material supplier of any Debtors has indicated within the past year that it
will stop, or decrease the rate of, supplying materials, products or services
to them.
2.21 Capital Expenditures. The Debtors have previously delivered to the
Buyer a true and complete list of all capital expenditures in an amount in
excess of $300,000 incurred by the Debtors during 1997, which list is attached
as Section 4.5(a) of the Company Disclosure Schedule.
2.22 Brokers' Fees. None of the Debtors has any liability or obligation to
pay any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement.
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2.23 Certain Information. None of the information supplied by the Debtors
for inclusion or incorporation by reference in (i) the Proxy Statement and
Registration Statement (each as defined in Section 4.13) or (ii) any document
to be filed with the SEC, the FCC or any other Governmental Entity in
connection with the transactions contemplated hereby will, at the respective
times filed with the SEC, the FCC or other Governmental Entity and, in
addition, (A) in the case of the Proxy Statement, at the time it or any
amendment or supplement thereto is mailed to the Buyer's stockholders and at
the time of the Meeting (as defined in Section 4.12) and at the Closing and,
(B) in the case of the Registration Statement, at the time it becomes
effective under the Securities Act, contain any untrue statement of the
Debtors of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding the
foregoing, no representation is made by the Debtors with respect to statements
made in any of the foregoing documents based upon information supplied by the
Buyer.
2.24 Disclosure. No representation or warranty by the Debtors contained in
this Agreement, and no statement contained in the Company Disclosure Schedule
or any other document, certificate or other instrument delivered to or to be
delivered by or on behalf of the Debtors pursuant to this Agreement, contains
or will as of the Closing Date contain any untrue statement of a material fact
or omits or will as of the Closing Date omit to state any material fact
necessary, in light of the circumstances under which it was or will be made,
in order to make the statements herein or therein not misleading.
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ARTICLE III
Representrations and Warrants of the Buyer
The Buyer represents and warrants to the Parent and the Company that the
statements contained in this Article III are true and complete, except as set
forth in the disclosure schedule of the Buyer delivered to the Company
simultaneously with the execution and delivery hereof (the "Buyer Disclosure
Schedule"). The Buyer Disclosure Schedule shall be arranged in sections and
paragraphs corresponding to the numbered and lettered sections and paragraphs
contained in this Article III, and the disclosures in any section or paragraph
of the Buyer Disclosure Schedule shall qualify other sections or paragraphs in
this Article III only to the extent that it is reasonably clear from a reading
of the disclosure that such disclosure is applicable to such other sections or
paragraphs. For purposes of this Agreement, a "Buyer Material Adverse Effect"
shall mean a material adverse effect on the businesses, assets (including
licenses, franchises and other intangible assets), financial condition,
operating income and prospects of the Buyer and its subsidiaries, taken as a
whole, excluding any effect generally applicable to the economy or the
industry in which the Buyer conducts its business.
3.1 Organization Qualification, Corporate Power and Authority.
(a) Each of the Buyer and the Merger Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware. Each of the Buyer and the Merger Subsidiary is duly qualified to
conduct business and is in good standing under the laws of each jurisdiction
(each such jurisdiction being set forth in Section 3.1(a) of the Buyer
Disclosure Schedule) in which the nature of its businesses or the ownership or
leasing of its properties requires such qualification, other than where the
failure to be so qualified would not in the aggregate have a Buyer Material
Adverse Effect. Each of the Buyer and the Merger Subsidiary has all requisite
corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it. The Buyer has
furnished to the Company true and complete copies of the Buyer's and the
Merger Subsidiary's respective certificates of incorporation and by-laws, each
as amended and as in effect on the date hereof. Each of the Buyer and the
Merger Subsidiary has at all times complied with, and is not in default under
or in violation of, any provision of its certificate of incorporation or by-
laws, other than where the failure to so comply and such defaults and
violations would not in the aggregate have a Buyer Material Adverse Effect.
(b) Each of the Buyer and the Merger Subsidiary has all requisite power and
authority to execute and deliver this Agreement. The execution and delivery of
this Agreement by the Buyer and the Merger Subsidiary and, subject to the
approval of the Buyer Charter Amendment (as defined in Section 4.12) and the
Buyer Share Issuance (as defined below in this Section 3.1(b)) by the
stockholders of the Buyer, the performance of this Agreement and the
consummation of the transactions contemplated hereby by the Buyer and the
Merger Subsidiary have been duly and validly authorized by all necessary
corporate action on the part of the Buyer and the Merger Subsidiary. This
Agreement has been duly and validly executed and delivered by the Buyer and
the Merger Subsidiary and constitutes a valid and binding obligation of the
Buyer and the Merger Subsidiary, enforceable against the Buyer and the Merger
Subsidiary in accordance with its terms. For purposes of this Agreement,
"Buyer Share Issuance" means the issuance by the Buyer of shares of its
capital stock as contemplated by this Agreement and the Amended Plan,
including (i) the issuance of the Plan Shares as contemplated by the Merger
Agreement and the Amended Plan, (ii) the issuance of shares of Buyer Common
Stock and, if applicable, shares of Class B Common Stock, par value $0.01 per
share, of the Buyer ("Buyer Class B Common Stock") having the terms specified
in the Buyer Charter Amendment upon exercise of Rights issued pursuant to the
Rights Offering or issued to the Standby Purchasers (or their assignees or
persons in substitution therefor) pursuant to the Standby Purchase Commitments
in connection with the Rights Offering, (iii) the issuance of shares of Buyer
Common Stock upon the exercise of Stockholder Rights issued pursuant to the
Stockholder Rights Offering, and
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(iv) the issuance of the Buyer Participation Warrants by the Buyer (x) to the
Standby Purchasers in connection with the Rights Offering and (y) pursuant to
the Buyer Distribution, and the issuance of shares of Buyer Common Stock upon
exercise of any of the foregoing Buyer Participation Warrants.
3.2 Capitalization.
(a) The authorized capital stock of the Buyer consists of 75,000,000 shares
of Buyer Common Stock and 10,000,000 shares of preferred stock, $.01 par value
("Buyer Preferred Stock"), of which 100,000 shares have been designated as
Series B Junior Participating Preferred Stock and 250,000 shares have been
designated as Series C Convertible Preferred Stock. As of the date hereof, (i)
21,067,110 shares of Buyer Common Stock are issued and outstanding, (ii) no
shares of Buyer Common Stock are held in the treasury of the Buyer, (iii)
2,740,381 shares of Buyer Common Stock are issuable upon exercise of certain
outstanding options or are reserved for issuance pursuant to the Buyer's
existing stock option and purchase plans, and (iv) 5,343,305 shares of Buyer
Common Stock are reserved for issuance upon exercise of other convertible
securities of the Buyer. As of the date hereof, no shares of Series B Junior
Participating Preferred Stock and 250,000 shares of Series C Convertible
Preferred Stock are issued and outstanding, and no shares of Buyer Preferred
Stock are held in the treasury of the Buyer. Except for such options and such
other convertible securities and except for the rights to purchase shares of
Series B Junior Participating Preferred Stock of the Buyer (the "Preferred
Rights") issued pursuant to the Rights Agreement dated as of October 13, 1995
(the "Rights Agreement"), between the Buyer and The Bank of New York, as
Rights Agent, there are no options, warrants, rights, calls, convertible
instruments, agreements or commitments to which the Buyer or any Buyer
Subsidiary is a party or which are binding upon any of them (other than this
Agreement) providing for the issuance, disposition or acquisition of any of
its capital stock or stock appreciation, phantom stock or similar rights. All
the issued and outstanding shares of the Buyer's capital stock are duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights.
(b) All the outstanding shares of capital stock of each of the Buyer
Subsidiaries are beneficially owned by the Buyer, directly or indirectly, free
and clear of any restrictions on transfer (other than restrictions under the
Securities Act and state or foreign securities laws), claims, Security
Interests, options, warrants, rights, contracts, calls, commitments, equities
or demands, and all such shares are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights.
(c) There are no voting trusts, proxies or other agreements or
understandings to which the Buyer or any of the Buyer Subsidiaries is a party
with respect to the voting of the capital stock of the Buyer or any Buyer
Subsidiary. None of the Buyer or the Buyer Subsidiaries is required to redeem,
repurchase or otherwise acquire shares of capital stock or debt securities of
the Buyer or of any Buyer Subsidiary as a result of the transactions
contemplated by this Agreement.
(d) The authorized capital stock of the Merger Subsidiary consists of 1,000
shares of common stock, $.01 par value, all of which are issued and
outstanding and held beneficially and of record by the Buyer.
(e) (i) The Plan Shares to be issued and distributed as contemplated by
Sections 1.3(e) and 1.6 of this Agreement, (ii) the shares of Buyer Common
Stock to be issued and distributed pursuant to the Stockholder Rights
Offering, (iii) the shares of Buyer Common Stock and the shares of Buyer Class
B Common Stock, if applicable, to be issued and delivered pursuant to the
Rights Offering (as defined in Section 4.20(a)) or as contemplated by the
Standby Purchase Commitments, (iv) the shares of Buyer Common Stock to be
issued and delivered upon conversion of shares of Buyer Class B Common Stock,
if applicable, when so converted in accordance with the Buyer Charter
Amendment (as defined in Section 4.12), (v) the Buyer Participation Warrants
to be issued and delivered as contemplated by the Standby Purchase Commitments
and pursuant to the Buyer Distribution, in either case, when so issued and
distributed or delivered, as the case may be, and (vi) the shares of Buyer
Common Stock to be issued and delivered upon exercise of Buyer Participation
Warrants, when issued, paid for and delivered as provided in the Buyer
Participation Warrant Agreement, will all be duly authorized, validly issued,
fully paid, nonassessable and free of preemptive rights.
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3.3 Noncontravention. Except for the applicable requirements of the
Securities Act and the Exchange Act, any applicable state and foreign
securities laws, the HSR Act, the Communications Act and the regulations of
the FCC, and state public utility, telecommunication or public service laws,
neither the execution and delivery of this Agreement by each of the Buyer and
the Merger Subsidiary nor the consummation of the transactions contemplated
hereby will (a) conflict with or violate any provision of the Buyer's or
Merger Subsidiary's respective certificate of incorporation or by-laws, (b)
require on the part of the Buyer and/or the Merger Subsidiary any filing with,
or any permit, authorization, consent or approval of, any Governmental Entity,
other than where the failure to make or obtain such filings, permits,
authorizations, consents or approvals would not in the aggregate have a Buyer
Material Adverse Effect or materially adversely affect the ability of the
Buyer to operate the business of the Buyer following the Effective Time, (c)
conflict with, result in a breach of, constitute (with or without due notice
or lapse of time or both) a default under, result in the acceleration of,
create in any party any right to accelerate, terminate, modify or cancel, or
require any notice, consent or waiver under, any contract, lease, sublease,
license, sublicense, franchise, permit, indenture, agreement or mortgage for
borrowed money, instrument of indebtedness, Security Interest or other
arrangement to which the Buyer or any Buyer Subsidiary is a party or by which
the Buyer or any Buyer Subsidiary is bound or to which any of their respective
assets are subject or any judgment, order, writ, injunction, decree, statute,
rule or regulation applicable to the Buyer or any Buyer Subsidiary or any of
their respective properties or assets, other than such conflicts, violations,
breaches, defaults, accelerations, terminations, modifications, cancellations
or notices, consents or waivers as would not in the aggregate have a Buyer
Material Adverse Effect, or (d) result in the imposition of any Security
Interest upon any assets of the Buyer or any Buyer Subsidiary.
3.4 Business Entities.
(a) Section 3.4(a) of the Buyer Disclosure Schedule sets forth a true and
complete list of each corporation, partnership, limited liability company or
other form of business association in which the Buyer, directly or indirectly,
owns any equity interest or any security convertible into or exchangeable for
an equity interest (each a "Buyer Business Entity") which is material to the
Buyer.
(b) The Buyer Business Entities listed in Section 3.4(b) of the Buyer
Disclosure Schedule are the only Buyer Business Entities which have conducted
any operations, trade or businesses of the Buyer since January 30, 1997, hold
any Buyer Authorizations (as defined in Section 3.14(a)) or own any assets
necessary for the conduct of the businesses of the Buyer as currently
conducted.
(c) The Buyer owns all the outstanding equity interests in each Buyer
Business Entity. For purposes of this Agreement, "Buyer Subsidiary" means any
Buyer Business Entity in which the Buyer, directly or indirectly, owns a
majority of the equity interests.
(d) No Buyer Business Entity is in default under or in violation of any
provision of its organizational documents. To the knowledge of the Buyer, all
the issued and outstanding equity interests of each Buyer Business Entity are
duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. All equity interests of each Buyer Business Entity are held
of record or owned beneficially by the Buyer free and clear of any
restrictions on transfer (other than restrictions under the Securities Act and
state or foreign securities laws), claims, Security Interests, options,
warrants, rights, contracts, calls, commitments, equities and demands.
(e) There are no voting trusts, proxies or other agreements or
understandings with respect to the voting of any equity interests of any Buyer
Business Entity to which the Buyer or any Buyer Subsidiary is a party or by
which it is bound, or, to the Buyer's knowledge, any other such trusts,
proxies, agreements or understandings.
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3.5 Reports and Financial Statements.
(a) The Buyer has previously furnished to the Debtors true and complete
copies, each as amended or supplemented to date, of (i) the Buyer's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, as filed by
the Buyer with the SEC, and (ii) all other reports, statements, exhibits and
other documents filed by the Buyer with the SEC under Section 13 or 15 of the
Exchange Act (which are all the reports, statements, exhibits and other
documents required to be so filed) since December 31, 1997 (such materials,
together with any amendments or supplements thereto, collectively being
referred to herein as the "Buyer Reports"). As of their respective dates, the
Buyer Reports complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to such Buyer Reports and the Buyer Reports did not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The audited
financial statements and unaudited interim financial statements of the Buyer
included in the Buyer Reports (i) comply as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, (ii) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby (except as may be indicated therein or in the notes thereto,
and, in the case of interim financial statements, as permitted by Form 10-Q
under the Exchange Act), (iii) fairly present the consolidated financial
condition, results of operations and cash flows of the Buyer as of the
respective dates thereof and for the periods referred to therein, and (iv) are
consistent with the books and records of the Buyer.
(b) The accounts receivable of the Buyer and its subsidiaries reflected on
the consolidated balance sheet of the Buyer as of June 30, 1998 (the "Buyer
Balance Sheet Date"), filed by the Buyer as part of its Quarterly Report on
Form 10-Q for the quarter that ended on such date (the "Most Recent Buyer
Balance Sheet"), and those arising since the date of the Most Recent Buyer
Balance Sheet, are valid receivables subject to no set-offs or counterclaims,
net of a reserve for bad debts, which reserve is reflected on the Most Recent
Buyer Balance Sheet. The inventories of the Buyer and its subsidiaries
reflected on the Most Recent Buyer Balance Sheet are of a quality and quantity
useable and/or saleable in the Ordinary Course of Business, except as written
down to net realizable value on the Most Recent Buyer Balance Sheet. All
inventory shown on the Most Recent Buyer Balance Sheet has been priced at the
lower of cost or net realizable value.
3.6 Absence of Certain Changes. Since the Buyer Balance Sheet Date, (a)
there has not been any Buyer Material Adverse Effect, nor has there occurred
any event or development that would have a Buyer Material Adverse Effect and
(b) the Buyer has not taken any action that would be prohibited by subsection
(b) of Section 4.5 below if taken from and after the date of this Agreement.
3.7 Undisclosed Liabilities. Neither the Buyer nor any Buyer Subsidiary has
any liability (whether known or unknown, whether absolute or contingent,
whether liquidated or unliquidated, whether due or to become due), except for
(a) liabilities separately shown or expressly reserved on the Most Recent
Buyer Balance Sheet, (b) liabilities that have arisen since the Buyer Balance
Sheet Date in the Ordinary Course of Business of the Buyer or any Subsidiary
and that are similar in nature and amount to the liabilities that arose during
the comparable period of time in the immediately preceding fiscal period; and
(c) liabilities incurred in the Ordinary Course of Business of the Buyer that
are not required by GAAP to be reflected on the Most Recent Buyer Balance
Sheet and that are not in the aggregate material.
3.8 Tax Matters.
(a) Each of the Buyer and the Buyer Subsidiaries has filed all Tax Returns
that it was required to file, and all such Tax Returns were true and complete
in all material respects. Neither the Buyer nor any Buyer Subsidiary is or has
even been a member of a group of corporations which has filed (or been
required to file) consolidated, combined or unitary Tax Returns, other than a
group of which the Buyer and the Buyer Subsidiaries are or were members.
Except as described in Section 3.8(a) of the Buyer Disclosure Schedule, (i)
each group of corporations with which the Buyer has filed (or was required to
file) consolidated, combined, unitary or similar Tax Returns
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(a "Buyer Affiliated Group") has filed all Tax Returns that it was required to
file with respect to any period in which the Buyer was a member of such Buyer
Affiliated Group (a "Buyer Affiliated Period") and (ii) all such Tax Returns
were true and complete in all material respects. Each of the Buyer and the
Buyer Subsidiaries has paid on a timely basis all Taxes (as defined below)
that were due and payable and, to the Buyer's knowledge, each member of a
Buyer Affiliated Group has paid all Taxes that were due and payable with
respect to all Buyer Affiliated Periods. The unpaid Taxes of the Buyer for tax
periods through the Most Recent Buyer Balance Sheet do not exceed the accruals
and reserves (other than accruals and reserves established to reflect timing
differences between book and tax income) for Taxes reflected on the Most
Recent Buyer Balance Sheet. All Taxes that the Buyer or any Buyer Subsidiary
is or was required by law to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper
Governmental Entity.
(b) The Buyer has delivered or otherwise made available to the Company true
and complete copies of all federal income Tax Returns of the Buyer and the
Buyer Subsidiaries, together with all related examination reports and
statements of deficiencies, for all periods commencing after December 31, 1993
and, to the extent in the possession of the Buyer, true and complete copies of
the portion of the federal income Tax Returns of any member of a Buyer
Affiliated Group, together with all related examination reports and statements
of deficiency, relating to the activities of the Buyer or any Buyer Subsidiary
for all Buyer Affiliated Periods commencing after December 31, 1993. The
federal income Tax Returns of each of the Buyer, any Buyer Subsidiary and,
each member of a Buyer Affiliated Group have been audited by the Internal
Revenue Service or are closed by the applicable statute of limitations for all
taxable years through the taxable year specified in Section 3.8(b) of the
Buyer Disclosure Schedule. The Buyer has delivered or otherwise made available
to the Company true and complete copies of all other Tax Returns of the Buyer
and each Buyer Subsidiary, together with all related examination reports and
statements of deficiency, for all periods commencing after December 31, 1993
and, to the extent in the possession of the Buyer, true and complete copies of
the portion of all other Tax Returns, of any member of a Buyer Affiliated
Group, together with all related examination reports and statements of
deficiency, relating to the activities of the Buyer or any Buyer Subsidiary
for all Affiliated Periods commencing after December 31, 1993. No examination
or audit of any Tax Return of the Buyer, any Buyer Subsidiary or, to the
Buyer's knowledge, any member of a Buyer Affiliated Group with respect to an
Affiliated Period by any Governmental Entity is currently in progress or, to
the knowledge of the Buyer, threatened or contemplated. Neither the Buyer, any
Buyer Subsidiary nor, to the Buyer's knowledge, any member of a Buyer
Affiliated Group has been informed by any jurisdiction that the jurisdiction
believes that the Buyer or any Buyer Subsidiary or any member of a Buyer
Affiliated Group was required to file any Tax Return that was not filed on a
timely basis. Neither the Buyer, any Buyer Subsidiary nor, to the Buyer's
Knowledge, any member of a Buyer Affiliated Group has waived any statute of
limitations with respect to Taxes or agreed to an extension of time with
respect to a Tax assessment or deficiency.
(c) Neither the Buyer nor any Buyer Subsidiary (i) is a "consenting
corporation" within the meaning of Section 341(f) of the Code and none of the
assets of the Buyer or any Buyer Subsidiary is subject to an election under
Section 341(f) of the Code; (ii) has been a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code during
the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; (iii)
has made any payments, is obligated to make any payments, or is a party to any
agreement that could obligate it to make any payments that may be treated as
an "excess parachute payment" under Section 280G of the Code; (iv) has any
actual or potential liability for any Taxes of any person (other than the
Buyer or any Buyer Subsidiary) under Treasury Regulation Section 1.1502-6 (or
any similar provision of federal, state, local, or foreign law), or as a
transferee or successor, by contract, or otherwise; or (v) is or has been
required to make a basis reduction pursuant to Treasury Regulation Section
1.1502-20(b) or Treasury Regulation Section 1.337(d)-2(b).
(d) None of the assets of the Buyer or any Buyer Subsidiary: (i) is property
that is required to be treated as being owned by any other person pursuant to
the provisions of former Section 168(f)(8) of the Code; (ii) is "tax-exempt
use property" within the meaning of Section 168(h) of the Code; or (iii)
directly or indirectly secures any debt the interest on which is tax exempt
under Section 103(a) of the Code.
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(e) Neither the Buyer nor any Buyer Subsidiary has undergone a change in its
method of accounting resulting in an adjustment to its taxable income pursuant
to Section 481(h) of the Code.
(f) No state or federal "net operating loss" of the Buyer or any Buyer
Subsidiary determined as of the Closing Date is subject to limitation on its
use pursuant to Section 382 of the Code or comparable provisions of state law
as a result of any "ownership change" within the meaning of Section 382(g) of
the Code occurring prior to the Closing Date.
(g) Section 3.8(g) of the Buyer Disclosure Schedule sets forth in reasonable
detail the following information with respect to the Buyer and each Buyer
Subsidiary as of the most recent practicable date: (i) the basis of the Buyer
and each Buyer Subsidiary in their respective assets; (ii) the basis of the
stockholder(s) in its stock (or the amount of any "excess loss account");
(iii) the amount of any net operating loss, net capital loss, unused
investment or other credit, unused foreign tax, or excess charitable
contribution allocable; and (iv) the amount of any deferred gain or loss
allocable arising out of any "deferred intercompany transaction."
3.9 Tangible Assets. The Buyer and the Buyer Subsidiaries own or lease all
tangible assets necessary for the conduct of their respective businesses as
presently conducted. Each such tangible asset is free from material defects,
has been maintained in accordance with normal industry practice, is in good
operating condition and repair (subject to normal wear and tear) and is
suitable for the purposes for which it is presently used, other than where the
failures or defects would not in the aggregate have a Buyer Material Adverse
Effect.
3.10 Owned Real Property. The Buyer has previously made available to the
Company a true and complete listing of all material real property that has
been owned by the Buyer or any Buyer Subsidiary at any time on or after
January 30, 1997. With respect to each parcel of real property which is
currently owned by the Buyer or any Buyer Subsidiary, the identified owner has
good record and marketable title to such parcel, free and clear of any
Security Interest, easement, covenant or other restriction, except for
Security Interests, easements, covenants and other restrictions which do not
materially impair the use, occupancy or value of such parcel as presently used
in the Buyer's or Buyer Subsidiaries' businesses.
3.11 Intellectual Property.
(a) The Buyer owns, licenses or otherwise has the legally enforceable right
to use all patents, trademarks, trade names, service marks, copyrights, and
any applications for such patents, trademarks, trade names, service marks and
copyrights, schematics, technology, know-how, computer software programs or
applications and tangible or intangible proprietary information or material
used in the operation of the business of the Buyer or any Buyer Subsidiary or
necessary for the operation of the business of the Buyer or any Buyer
Subsidiary as presently conducted by the Buyer or any Buyer Subsidiary
(collectively "Buyer Intellectual Property"). Each such item of Buyer
Intellectual Property owned or available for use by the Buyer or a Buyer
Subsidiary immediately prior to Closing will be owned or available for use by
the Buyer or the Buyer Subsidiary on substantially similar terms and
conditions immediately following the Closing. No other person or entity has
any rights to any of the Buyer Intellectual Property, and no other person or
entity is infringing, violating or misappropriating any of, the Buyer
Intellectual Property used in the business of the Buyer, other than such
infringements, violations or misappropriations as would not in the aggregate
have a Buyer Material Adverse Effect.
(b) The business, operations and activities of the Buyer and each Buyer
Subsidiary as presently conducted or as conducted at any time within the two
years prior to the date of this Agreement have not materially infringed or
violated, or constituted a material misappropriation of, and do not now
materially infringe or violate, or constitute a material misappropriation of,
any intellectual property rights of any other person or entity. Since January
30, 1997, neither the Buyer nor any Buyer Subsidiary has received any written,
or to its knowledge, verbal, complaint, claim or notice alleging any such
infringement, violation or misappropriation which has not been disposed of
through a settlement agreement described in Section 3.11(b) of the Buyer
Disclosure Schedule.
3.12 Real Property Leases. Section 3.12 of the Buyer Disclosure Schedule
lists all real property (other than tower sites) leased or subleased to the
Buyer or any Buyer Subsidiary, indicating, in each case, the term of
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the lease and the rent payable under such lease. The Buyer has made available
to the Company true and complete copies of all such leases and subleases (each
as amended to date). With respect to each such lease and sublease:
(a) the lease or sublease is legal, valid, binding, enforceable and in
full force and effect, subject to the effect of bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally and except as the availability of equitable remedies may
be limited by general principles of equity;
(b) neither the Buyer nor any Buyer Subsidiary nor, to the Buyer's
knowledge, any other party to the lease or sublease, is in material breach
or default, and no event has occurred which, with notice or lapse of time,
would constitute a material breach or default by the Buyer or any Buyer
Subsidiary or, to the Buyer's knowledge, by any such other party, or permit
termination, modification or acceleration thereunder;
(c) to the knowledge of the Buyer, there are no material disputes, oral
agreements or forbearance programs in effect as to the lease or sublease;
(d) neither the Buyer nor any Buyer Subsidiary has assigned, transferred,
conveyed, mortgaged, deeded in trust or encumbered any interest in the
leasehold or subleasehold;
(e) all facilities leased or subleased thereunder are supplied with
utilities and other services necessary for the operation of said
facilities; and
(f) other than in the Ordinary Course of Business, no construction,
alteration or other leasehold improvement work with respect to the lease or
sublease remains to be paid for or performed by the Buyer or any Buyer
Subsidiary.
3.13 Contracts. The Buyer has delivered or otherwise made available to the
Company a true and complete copy of each written arrangement (each as amended
to date) filed as an exhibit to any Buyer Report. With respect to each written
arrangement (i) each written agreement will continue to be legal, valid,
binding, enforceable and in full force and effect immediately following the
Closing with the same terms as in effect immediately prior to the Closing,
subject to the effect of bankruptcy, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and except as
the availability of equitable remedies may be limited by general principles of
equity; and (ii) neither the Buyer nor any Buyer Subsidiary nor, to the
Buyer's knowledge, any other party, is in material breach or default, and no
event has occurred which with notice or lapse of time would constitute a
material breach or default by the Buyer or any Buyer Subsidiary or, to the
Buyer's knowledge, by any such other party, or permit termination,
modification or acceleration, under the written arrangement. Neither the Buyer
nor any Buyer Subsidiary is a party to any oral contract, agreement or other
arrangement which, if reduced to written form, would be required to be filed
as an exhibit as a material contract to an Annual Report on Form 10-K filed by
the Buyer. Neither the Buyer nor any Buyer Subsidiary is restricted by any
arrangement from carrying on its business anywhere in the United States.
3.14 Licenses and Authorizations
(a) The Buyer and the Buyer Subsidiaries hold all licenses, permits,
certificates, franchises, ordinances, registrations, or other rights,
applications and authorizations filed with, granted or issued by, or entered
by any Governmental Entity, including, without limitation, the FCC or any
State Authority asserting jurisdiction over the Buyer or any Buyer Subsidiary
or its business or assets, that are required for the conduct of their
businesses as currently being conducted (each as amended to date) (the "Buyer
Authorizations"), other than such licenses, permits, certificates, franchises,
ordinances, registrations or other rights, applications and authorizations the
absence of which would not in the aggregate materially impair the ability of
the Buyer to consummate the transactions contemplated hereby or of the Buyer
to own and operate the properties, assets and businesses of the Buyer
following the Closing. The Buyer has heretofore delivered to the Company a
true and complete list of such Buyer Authorizations.
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(b) The Buyer has previously made available to the Company a true and
complete list of (i) each application of the Buyer and/or any Buyer Subsidiary
pending before the FCC (collectively, the "Buyer FCC Applications"); (ii) each
FCC permit and FCC license which is not a Buyer Authorization but in which the
Buyer or any Buyer Subsidiary, directly or indirectly, holds an interest,
including as a stakeholder in the licensee (collectively, the "Indirect Buyer
Authorizations"); and (iii) all licenses, certificates, consents, permits,
approvals and authorizations for the benefit of the Buyer and the Buyer
Subsidiaries, as applicable, pending before any State Authority (collectively,
the "Buyer State Applications"). The Buyer Authorizations, the Buyer FCC
Applications, the Indirect Buyer Authorizations and the Buyer State
Applications (collectively, the "Buyer Licenses and Authorizations") are the
only federal, state or local licenses, certificates, consents, permits,
approvals and authorizations that are required for the conduct of the business
and operations of the Buyer and the Buyer Subsidiaries as presently conducted,
other than such consents, permits, approvals or authorizations the absence of
which would not in the aggregate materially impair the ability of the Buyer
and the Merger Subsidiary to either consummate the transactions contemplated
hereby or of the Buyer and the Buyer Subsidiaries to own and operate the
properties, assets and businesses of the Buyer and the Buyer Subsidiaries
following the Closing.
(c) The Buyer Authorizations and, to the Buyer's knowledge, the Indirect
Buyer Authorizations are in full force and effect and have not been pledged or
otherwise encumbered, assigned, suspended, modified in any material adverse
respect, canceled or revoked, and the Buyer and the Buyer Subsidiaries have
each operated in compliance with all terms thereof or any renewals thereof
applicable to them, other than where the failure to so comply would not in the
aggregate have a Buyer Material Adverse Effect or materially impair the
ability of the Buyer to consummate the transactions contemplated hereby or of
the Buyer to own and operate the properties, assets and businesses of the
Buyer following the Closing. No event has occurred with respect to any of the
Buyer Authorizations which permits, or after notice or lapse of time or both
would permit, revocation or termination thereof or would result in any other
material impairment of the rights of the holder of any such Buyer
Authorizations. To the knowledge of the Buyer, there is not pending any
application, petition, objection or other pleading with the FCC, any State
Authority or any similar body having jurisdiction or authority over the
operations of the Buyer and the Buyer Subsidiaries which questions the
validity of or contests any Buyer Authorization or which could reasonably be
expected, if accepted or granted, to result in the revocation, cancellation,
suspension or any materially adverse modification of any Buyer Authorization.
(d) Except for approval by the Bankruptcy Court or by the FCC as
contemplated by Section 4.15, or as set forth in Section 3.14(d) of the Buyer
Disclosure Schedule, no permit, consent, approval, authorization,
qualification or registration of, or declaration to or filing with, any
Governmental Entity is required to be obtained or made by the Buyer or any
Buyer Subsidiary in connection with the transfer or deemed transfer of the
Buyer Licenses and Authorizations as a result of the consummation of the
transactions contemplated hereby, except where the failure to obtain or make
such permit, consent, approval, authorization, qualification, registration,
declaration or filing would not materially impair the ability of the Buyer to
consummate the transactions contemplated hereby or the Buyer to own and
operate the properties, assets and businesses of the Buyer following the
Closing.
3.15 Litigation. Except as described in the Buyer Reports, as of the date of
this Agreement: (a) there is no action, suit, proceeding or investigation to
which the Buyer or any Buyer Subsidiary is a party (either as a plaintiff or
defendant) pending or, to the Buyer's knowledge, threatened before any court,
Governmental Entity or arbitrator, and, to the Buyer's knowledge, there is no
basis for any such action, suit, proceeding or investigation; (b) neither the
Buyer nor any Buyer Subsidiary nor, to the Buyer's knowledge, any officer,
director or employee of the Buyer or any Buyer Subsidiary has been permanently
or temporarily enjoined by any order, judgment or decree of any court or
Governmental Entity from engaging in or continuing to conduct the business of
the Buyer or any Buyer Subsidiary; and (c) no order, judgment or decree of any
court or Governmental Entity has been issued in any proceeding to which the
Buyer or any Buyer Subsidiary is or was a party or, to the Buyer's knowledge,
in any other proceeding, that enjoins or requires the Buyer or any Buyer
Subsidiary to take action of any kind with respect to its business, assets or
properties. None of the actions, suits, proceedings or investigations listed
in Section 3.15 of the Buyer Disclosure Schedule, individually or
collectively, if determined adversely to the interests of the Buyer or any
Buyer Subsidiary, would have a Buyer Material Adverse Effect.
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3.16 Employees.
(a) There are no collective bargaining agreements to which Buyer or any
Buyer Subsidiary is a party. Neither the Buyer nor any Buyer Subsidiary has
experienced any strikes, grievances, claims of unfair labor practices or other
collective bargaining disputes and, to the Buyer's knowledge, no
organizational effort is presently being made or threatened by or on behalf of
any labor union with respect to its employees. To the knowledge of the Buyer
or any Buyer Subsidiary there is no reasonable basis to believe that the Buyer
or any Buyer Subsidiary will be subject to any labor strike or other organized
work force disturbance following the Closing.
3.17 Employee Benefits.
(a) Section 3.17(a) of the Buyer Disclosure Schedule contains a true and
complete list of all Employee Benefit Plans maintained, or contributed to, by
the Buyer or any Buyer Subsidiary or any ERISA Affiliate of the Buyer or any
Buyer Subsidiary (the "Buyer Employee Benefit Plan"). True and complete copies
of (i) all Buyer Employee Benefit Plans that have been reduced to writing;
(ii) written summaries of all unwritten Buyer Employee Benefit Plans; (iii)
all trust agreements, insurance contracts and summary plan descriptions
related to the Buyer Employee Benefit Plans; (iv) the annual report filed on
IRS Form 5500, 5500C or 5500R, if applicable, for the most recent plan year
for each Buyer Employee Benefit Plan; and (v) the most recent qualification
letter issued by the Internal Revenue Service with respect to each Buyer
Employee Benefit Plan that is intended to qualify under Section 401(a) of the
Code, have been made available to the Company. Each Buyer Employee Benefit
Plan has been administered in accordance with its terms in all material
respects, and the Buyer and each Buyer Subsidiary and, to the Buyer's
knowledge, each ERISA Affiliate of the Buyer or any Buyer Subsidiary has in
all material respects met its obligations (if any) with respect to each Buyer
Employee Benefit Plan and has made all required contributions (if any)
thereto. The Buyer, all Buyer Subsidiaries and all Buyer Employee Benefit
Plans are in compliance in all material respects with the currently applicable
provisions (if any) of ERISA, the Code and other applicable federal, state and
foreign laws and the regulations thereunder. Each Buyer Employee Benefit Plan
that is intended to qualify under Section 401(a) of the Code is so qualified.
Each Buyer Employee Benefit Plan that is required to satisfy Section 401(k)(3)
or Section 401(m)(2) of the Code has been reviewed for compliance with, and
has satisfied the requirements of, said Sections for each plan year ending
prior to the Closing.
(b) To the Buyer's knowledge, as of the date of this Agreement, there are no
inquiries or investigations by any Governmental Entity, termination
proceedings or other claims (except claims for benefits payable in the normal
operation of the Buyer Employee Benefit Plans and proceedings with respect to
qualified domestic relations orders), suits or proceedings against or
involving any Buyer Employee Benefit Plan or asserting any rights or claims to
benefits under any Buyer Employee Benefit Plan.
(c) Neither the Buyer or any Buyer Subsidiary nor, to the Buyer's knowledge,
any ERISA Affiliate of the Buyer or any Buyer Subsidiary has ever maintained
an Buyer Employee Benefit Plan subject to Section 412 of the Code, Part 3 of
Subtitle B of Title I of ERISA, or Title IV of ERISA. At no time has the Buyer
or any Buyer Subsidiary or, to the Buyer's knowledge, any ERISA Affiliate of
the Buyer or any Buyer Subsidiary been obligated to contribute to any
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) that is
subject to Title IV of ERISA. No act or omission has occurred and no condition
exists with respect to any Buyer Employee Benefit Plan that would subject the
Buyer, any Buyer Subsidiary or, to the Buyer's knowledge, any ERISA Affiliate
of the Buyer or any Buyer Subsidiary to any material fine, penalty, Tax or
liability of any kind imposed under ERISA or the Code. No prohibited
transaction (as defined in Section 406 of ERISA or Section 4975 of the Code)
has occurred with respect to any Buyer Employee Benefit Plan that is subject
to ERISA or the Code. No Buyer Employee Benefit Plan, plan documentation or
agreement, summary plan description or other written communication distributed
generally to employees by its terms prohibits the Buyer from amending or
terminating any such Buyer Employee Benefit Plan and any Buyer Employee
Benefit Plan may be terminated without liability to the Buyer or any Buyer
Subsidiary, except for benefits accrued through the date of termination.
Except as may be required by Part 6 of Title I of ERISA or similar state laws
regarding continuation
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of benefits, no former employees participate in any employee welfare benefit
plans listed in Section 3.17(a) of the Buyer Disclosure Schedule beyond the
month of the termination of his employment. No Buyer Employee Benefit Plan
includes in its assets any securities issued by the Buyer. No Employee Benefit
Plan has been subject to tax under Section 511 of the Code.
(d) Section 3.17(d) of the Buyer Disclosure Schedule lists each: (i)
agreement with any director, executive officer or other key employee of the
Buyer or any Buyer Subsidiary (A) the benefits of which are contingent, or the
terms of which are altered, upon the occurrence of a transaction involving the
Buyer or any Buyer Subsidiary of the nature of any of the transactions
contemplated by this Agreement; (B) providing any term of employment or
compensation guarantee or (C) providing severance benefits or other benefits
upon the consummation of any transaction or after the termination of
employment of such director, executive officer or key employee; (ii)
agreement, plan or arrangement under which any person may receive payments
from the Buyer or any Buyer Subsidiary that may be subject to the tax imposed
by Section 4999 of the Code or may constitute a "parachute payment" under
Section 280G of the Code; and (iii) agreement or plan binding the Buyer or any
Buyer Subsidiary, including, without limitation, any stock option plan, stock
appreciation right plan, restricted stock plan, stock purchase plan, severance
benefit plan, or any Employee Benefit Plan, any of the benefits of which will
be increased, or the vesting of the benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this Agreement or
the value of any of the benefits of which will be calculated on the basis of
any of the transactions contemplated by this Agreement.
3.18 Environmental Matters.
Except for Sections 3.5(a), 3.26, and 3.27, this Section 3.18 contains the
exclusive representations and warranties of the Buyer concerning environmental
matters, including but not limited to Environmental Laws and Materials of
Environmental Concern. The Buyer represents and warrants as follows:
(a) Each of the Buyer and each Buyer Subsidiary is in compliance with all
applicable Environmental Laws, other than where the failure to be in
compliance would not in the aggregate have a Buyer Material Adverse Effect.
There is no pending or, to the knowledge of the Buyer or any Buyer Subsidiary,
threatened civil or criminal litigation, written notice of violation, formal
administrative proceeding, or written notice of investigation or inquiry or
written information request by any Governmental Entity, relating to any
Environmental Law involving the Buyer or any Buyer Subsidiary or their
respective assets and properties.
(b) There have been no releases of any Materials of Environmental Concern
into the environment at any parcel of real property or any facility formerly
or currently owned, operated or controlled by the Buyer or any Buyer
Subsidiary for which the Buyer or any Buyer Subsidiary may be liable under any
Environmental Law of the jurisdiction in which such property or facility is
located, other than such releases as would not in the aggregate have a Buyer
Material Adverse Effect. With respect to any such releases of Materials of
Environmental Concern, the Buyer or such Buyer Subsidiary has given all
required notices (if any) to Governmental Entities (copies of which have been
provided to the Company). There have been no releases of Materials of
Environmental Concern at parcels of real property or facilities other than
those owned, operated or controlled by the Buyer or any Buyer Subsidiary that
could reasonably be expected to have an impact on the real property or
facilities owned, operated or controlled by the Buyer or any Buyer Subsidiary
other than such impacts as would not in the aggregate have a Debtor Material
Adverse Effect.
(c) Set forth in Section 3.18 of the Buyer Disclosure Schedule is a list of
all environmental reports, investigations and audits which to the knowledge of
the Buyer (whether conducted by or on behalf of the Buyer or any Buyer
Subsidiary or a third party, and whether done at the initiative of the Buyer
or any Buyer Subsidiary or directed by a Governmental Entity or other third
party) were issued during the past five years relating to premises formerly or
currently owned, operated or controlled by the Buyer or any Buyer Subsidiary.
True and complete copies of any such report, or the results of any such
investigation or audit, which to the knowledge of the Buyer are in the
possession of Buyer or any Buyer Subsidiary (or can be obtained by Buyer or
any Buyer Subsidiary through reasonable efforts), have been delivered or
otherwise made available to the Company.
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(d) Neither the Buyer nor any Buyer Subsidiary has any knowledge of any
material environmental liability of the solid and hazardous waste transporters
and treatment, storage and disposal facilities that have been utilized by the
Buyer or any Buyer Subsidiary.
(e) The Buyer and the Buyer Subsidiaries hold all Environmental
Authorizations that are legally required for the conduct of their businesses
as currently conducted, other than where the failure to hold such
Environmental Authorizations would not in the aggregate have a Buyer Material
Adverse Effect, and such Environmental Authorizations (if any) are listed in
Section 3.18 of the Buyer Disclosure Schedule. The Buyer and each of the Buyer
Subsidiaries is and has been in compliance with all such Environmental
Authorizations, other than such noncompliance as would not in the aggregate
have a Buyer Material Adverse Effect.
(f) None of the transactions contemplated by this Agreement or the Amended
Plan will require the Buyer or any Buyer Subsidiary to comply with an
Environmental Property Transfer Act.
3.19 Legal Compliance. Each of the Buyer and each Buyer Subsidiary and the
conduct and operation of its respective business, is and has been in
compliance with each law (including rules, regulations and administrative
orders thereunder) of any federal, state, local or foreign government, or any
Governmental Entity, that (a) affects or relates to this Agreement or the
transactions contemplated hereby or (b) is applicable to the Buyer or any
Buyer Subsidiary or their respective businesses, other than where the failure
to be or to have been in compliance would not in the aggregate have a Buyer
Material Adverse Effect or materially impair the ability of the Buyer to
consummate the transactions contemplated hereby or the Buyer to own and
operate the properties, assets and businesses of the Buyer following the
Closing.
3.20 Merger Subsidiary. The Merger Subsidiary was formed solely for the
purpose of effecting the transactions contemplated by this Agreement and,
except for such obligations or liabilities incurred in connection with its
incorporation or organization, and except for this Agreement and any other
agreements or arrangements contemplated by this Agreement, the Merger
Subsidiary has not and will not have incurred, directly or indirectly, any
obligations or liabilities or engaged in any business activities of any type
or kind whatsoever or entered into any agreements or arrangements with any
person.
3.21 Capital Expenditures; Suppliers. The Buyer has previously delivered to
the Company a true and complete accounting of all capital expenditures
incurred by it or the Buyer Subsidiaries during 1997 and their projected
capital expenditure budget for calendar years 1998 and 1999. To the knowledge
of the Buyer or any Buyer Subsidiary no material supplier of the Buyer or any
Buyer Subsidiary has indicated within the past year that it will stop, or
decrease the rate of, supplying materials, products or services to them.
3.22 Brokers' Fees. Neither the Buyer nor any Buyer Subsidiary has any
liability or obligation to pay any fees or commissions to any broker, finder
or agent with respect to the transactions contemplated by this Agreement
except to Bear, Stearns & Co. Inc. ("Bear Stearns"), the financial advisor to
the Buyer.
3.23 Rights Agreement; Section 203.
(a) The Buyer has executed amendments dated as of August 18, 1998 and
September 3, 1998 to its Rights Agreement dated as of October 13, 1995 in the
forms attached hereto as Exhibit D, and Exhibit D-1, respectively.
(b) The Board of Directors of the Buyer has approved this Agreement, the
Merger and the Amended Plan together with the transactions contemplated hereby
and thereby (including without limitation the acquisition by the Standby
Purchasers of Buyer Participation Warrants and Buyer Common Stock or Buyer
Class B Common Stock, if applicable, pursuant to this Agreement, the Amended
Plan and the Standby Purchase Commitments, or of Buyer Common Stock pursuant
to the Buyer Warrants or Buyer Participation Warrants), including for purposes
of Section 203 of the DGCL.
3.24 Opinion of Financial Advisor. The Buyer has received an opinion of Bear
Stearns & Co. Inc., a copy of which is attached hereto as Exhibit E.
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3.25 Required Vote of the Buyer's Stockholders. The affirmative vote of a
majority of the votes cast by holders of Buyer Stock is required to approve
the Buyer Share Issuance and the affirmative vote of a majority of the votes
entitled to be cast by holders of Buyer Stock is required to approve the Buyer
Charter Amendment. No other vote of the security holders of the Buyer or of
any Buyer Subsidiary is required by law, the respective organization documents
thereof or otherwise in order for the Buyer to consummate the Merger and the
other transactions contemplated hereby and by the Amended Plan.
3.26 Certain Information. None of the information supplied by the Buyer or
any Buyer Subsidiary for inclusion or incorporation by reference in (i) the
Proxy Statement (as defined in Section 4.13(a)) and Registration Statement (as
defined in Section 4.20(c)) or (ii) any document to be filed with the SEC, the
FCC or any other Governmental Entity in connection with the transactions
contemplated hereby will, at the respective times filed with the SEC, the FCC
or other Governmental Entity and, in addition, (A) in the case of the Proxy
Statement, at the time it or any amendment or supplement thereto is mailed to
the Buyer's stockholders and at the time of the Meeting (as defined in Section
4.12) and at the Closing and, (B) in the case of the Registration Statement,
at the time it becomes effective under the Securities Act, contain any untrue
statement of the Buyer or any Buyer Subsidiary of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, no representation is made by
the Buyer or any Buyer Subsidiary with respect to statements made in any of
the foregoing documents based upon information supplied by the Company.
3.27 Disclosure. No representation or warranty by the Buyer contained in
this Agreement, and no statement contained in the Buyer Disclosure Schedule or
any other document, certificate or other instrument delivered to or to be
delivered by or on behalf of the Buyer pursuant to this Agreement, contains or
will as of the Closing Date contain any untrue statement of a material fact or
omits or will as of the Closing Date omit to state any material fact
necessary, in light of the circumstances under which it was or will be made,
in order to make the statements herein or therein not misleading.
ARTICLE IV
Covenants
4.1 Best Efforts. Except, in the case of the Parent and the Company, to the
extent required by Bankruptcy-Related Requirements (as defined in Section
4.5), each Party shall use its best efforts to cause the transactions
contemplated by this Agreement and the Amended Plan to be consummated in
accordance with the terms hereof and thereof, and without limiting the
generality of the foregoing shall use its best efforts to obtain all necessary
approvals, waivers, consents, permits, licenses, registrations and other
authorizations required in connection with this Agreement and the Amended Plan
and the transactions contemplated hereby and thereby and, in the case of the
Buyer, to assist the Parent and the Company in the preparation of a Disclosure
Statement related to the Amended Plan and, in the case of the Parent and the
Company, to assist the Buyer in the preparation of the Proxy Statement and
Registration Statement, including, without limitation, entry of the
Confirmation Order, and to make all filings with and to give all notices to
third parties which may be necessary or reasonably required of it in order to
consummate the transactions contemplated hereby and thereby, provided,
however, that actions taken by the Parent and the Company in compliance with
Section 4.7(b) and actions taken by the Buyer in accordance with Section
4.7(e) shall not be deemed a breach by the Parent or the Company, on the one
hand, or the Buyer, on the other hand, of this Section 4.1.
4.2 Approvals; Consents. Each Party shall obtain and maintain in full force
and effect all approvals, consents, permits, licenses and other authorizations
from all Governmental Entities reasonably necessary or required for the
operation of their respective businesses as presently conducted, as and when
such approvals, consents, permits, licenses or other authorizations are
necessary or required, except where the failure to do so would not have a
Debtor Material Adverse Effect or a Buyer Material Adverse Effect, as
applicable, or materially impair the ability of the Company or the Buyer to
consummate the transactions contemplated hereby or the
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Reorganized Debtors or the Buyer to own and operate the properties, assets and
businesses of the Debtors following the Closing. Without limiting the
generality of the foregoing, each Party shall maintain its respective
authorizations in full force and effect, shall not take any action which could
reasonably be expected to have a material adverse effect on such
authorizations or any licenses and authorizations, shall diligently pursue all
applications and shall, prior to the expiration date of any material
authorization, timely file for the renewal of any such authorization. Neither
Party shall make any material commitments to any Governmental Entity relating
to any material approval, consent, permit, license or other authorization
without the prior written consent of the other Parties. The Parties shall
consult with one another as to the approach to be taken with any Governmental
Entity with respect to obtaining any necessary consent to the transactions
contemplated hereby and by the Amended Plan, and each of the Parties shall
keep the other Parties reasonably informed as to the status of any such
communications with any Governmental Entity. Without limiting the generality
of the foregoing, the Buyer, the Parent and the Company shall, and shall cause
each of the Buyer Subsidiaries or each of the other Debtors, as applicable, to
make the necessary preliminary filings under the HSR Act no later than ten
days following the date of this Agreement and shall seek early termination of
all applicable waiting periods. The Buyer, the Parent and the Company shall,
and shall cause each of the Buyer Subsidiaries or each of the other Debtors,
as applicable, to use their reasonable best efforts to resolve any competitive
issues relating to or arising under the HSR Act or any other federal or state
antitrust or fair trade law raised by any Governmental Entity. The Parties
will consult and cooperate with one another, and consider in good faith the
views of one another, in connection with any analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and proposals made or
submitted by or on behalf of any Party in connection with proceedings under or
relating to the HSR Act or any other federal or state antitrust or fair trade
law. In the event of a challenge to the transactions contemplated by this
Agreement pursuant to the HSR Act, the Buyer, the Parent and the Company
shall, and shall cause each of the Buyer Subsidiaries or each of the other
Debtors, as applicable, to use their reasonable best efforts to defeat such
challenge, including by institution and defense of litigation, or to settle
such challenge on terms that permit the consummation of the transactions
contemplated by this Agreement; provided, however, that nothing herein shall
require the Buyer to divest or hold separate any portion of its business or
otherwise take any action, which divestiture or holding separate or taking
such action would be materially adverse to the continued conduct of the
Buyer's or the Debtor's businesses. The Buyer shall pay all filing fees
payable by any Party in connection with the HSR Act.
4.3 Buyer Not To Control. Notwithstanding any provision of this Agreement
that may be construed to the contrary, pending the consummation of the
transactions contemplated hereby, the Buyer shall not obtain actual (de facto)
or legal (de jure) control over the Debtors. Specifically, and without
limitation, the responsibility for the operation of the Debtors shall, pending
the consummation of the transactions contemplated hereby, reside with the
Boards of Directors of the Debtors (subject to the jurisdiction of the
Bankruptcy Court), including, but not limited to, responsibility for the
following matters: access to and the use of the facilities of and equipment
owned by the Debtors; control of the daily operation of the Debtors; creation
and implementation of policy decisions; employment and supervision of
employees; payment of financing obligations and expenses incurred in the
operation of the Debtors; receipt and distribution of monies and profits
derived from the operation of the Debtors; and execution and approval of all
contracts and applications prepared and filed before regulatory agencies.
Notwithstanding the foregoing, the Parties shall consult and cooperate with
one another, and consider in good faith the views of one another with respect
to the assumption or rejection by the Debtors prior to Closing of any
unexpired lease, license or other executory contract.
4.4 Bankruptcy Covenants.
(a) Promptly after the execution of this Agreement, the Parent and the
Company shall, and shall cause each of the other Debtors to, file a motion
(the "Initial Merger Motion") for expedited determination of approval of the
Exclusivity Provisions (as defined in Section 4.7(a)), the Company Breakup Fee
and the Buyer Breakup Fee (as defined in Section 4.8(a)) and the Buyer
Reimbursement (as defined in Section 4.21) provided for in this Agreement in
form and substance acceptable to the Buyer. The Parent and the Company shall,
and shall cause each of the other Debtors to, use its best efforts to obtain
an order approving the Initial Merger Motion (the
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"Initial Merger Order") within 15 days after the date of this Agreement, which
order shall be in form and substance acceptable to the Buyer, the Parent and
the Company with only such changes as shall be agreed to by all the Parties in
writing.
(b) As soon as practicable following the execution of this Agreement (and in
no event later than December 2, 1998), the Parent and the Company shall, and
shall cause each of the other Debtors to, file with the Bankruptcy Court the
Amended Plan. As soon as practicable following the filing of the Amended Plan
(and in no event later than December 3, 1998), the Parent and the Company
shall, and shall cause each of the Debtors to, file with the Bankruptcy Court
a Disclosure Statement related thereto in form and substance reasonably
acceptable to the Buyer and the Company (the "Disclosure Statement").
Thereafter, without the prior written consent of the Buyer, the Parent and the
Company shall not, and shall cause each of the other Debtors not to, amend or
modify any material provision of the Amended Plan or the Disclosure Statement
or, except as provided in Section 4.7(b), withdraw the Amended Plan or file
any other plan of reorganization of the Debtors.
(c) The Parent and the Company shall, and shall cause each of the other
Debtors to, promptly provide the Buyer with drafts of all documents, motions,
orders, filings or pleadings that the Parent, the Company or any other Debtor
proposes to file with the Bankruptcy Court which relate to the consummation or
approval of the Amended Plan, this Agreement or any provision therein or
herein, and will provide the Buyer with reasonable opportunity to review such
filings to the extent reasonably practicable. The Parent and the Company
shall, and shall cause each of the other Debtors to, consult and cooperate
with the Buyer, and consider in good faith the views of the Buyer, as
contemplated by the Amended Plan, with respect to all such filings and the
acceptance or rejection prior to Closing of any unexpired lease, license or
other executory contract. The Parent and the Company shall, and shall cause
each of the other Debtors to, promptly (and, in any event, within 48 hours
after receipt of such pleadings by the Debtors) provide the Buyer with copies
of all pleadings (other than proofs of claim below $10,000 in amount) received
by or served by or upon any of the Debtors in connection with the Chapter 11
Proceeding after the date hereof, which either the Parent or the Company knows
have not otherwise been served on the Buyer.
4.5 Operation of Business. Except as otherwise contemplated by this
Agreement or the Amended Plan and, in the case of the Debtors, to the
Bankruptcy Code, the Bankruptcy Rules, the operation and information
requirements of the Office of United States Trustee, and any orders entered or
approvals or authorizations granted by the Bankruptcy Court in the Chapter 11
Proceeding during the period prior to the Closing (collectively, "Bankruptcy-
Related Requirements"), each of the Company, the Parent or the Company, on the
one hand, or the Buyer, on the other hand, shall, and shall cause each of the
other Debtors or each of the Buyer Subsidiaries, as applicable, to, conduct
its operations in the Ordinary Course of Business and in compliance with all
other applicable laws and regulations, and, to the extent consistent
therewith, use all reasonable efforts to preserve intact its current business
organization, keep its physical assets in good working condition, pay all
Taxes (all post-petition Taxes in the case of the Debtors) as they become due
and payable, maintain insurance on its business and assets (in amounts and
types consistent with past practice), keep available the services of its
current officers and employees and preserve its relationships with customers,
suppliers and others having business dealings with it to the end that its
goodwill and ongoing business shall not be impaired in any material respect.
(a) Without limiting the generality of the foregoing, prior to the Closing,
and, except to the extent required by any Bankruptcy-Related Requirements, the
Parent and the Company shall not and shall not permit any other Debtor to,
without the prior written consent of the Buyer and except as otherwise
contemplated by this Agreement or the Amended Plan, or as otherwise provided
in Section 4.5 of the Company Disclosure Schedule:
(i) except for assets not in excess of $2,500,000 in aggregate fair
market value, sell, lease, mortgage, pledge, encumber or dispose
(collectively, "Dispose") of any of its assets, other than in the Ordinary
Course of Business;
(ii) except for borrowings under the existing DIP Loan Agreement in an
aggregate amount outstanding at any one time equal to the sum of (x)
amounts representing costs incurred or committed as of the date hereof in
connection with the Company's NPCS network construction as set forth in
Section 4.5(a) of the
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Company Disclosure Schedule ("NPCS Construction") plus any additional costs
for NPCS Construction approved by the Buyer (which approval shall be given
or withheld in writing within ten (10) business days after the written
request for such approval) and (y) (1) at any time on or before December
31, 1998 up to a maximum of $20 million, and (2) at any time between
January 1, 1999 and June 30, 1999 up to a maximum of $30 million, create,
incur or assume any indebtedness for borrowed money not currently
outstanding (including obligations in respect of capital leases); assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other
person; or make any loans, advances or capital contributions to, or
investments in, any other person;
(iii) except for changes to Debtors' payroll program as previously
disclosed to the Buyer, enter into, adopt or amend any Company Employee
Benefit Plan or any employment or severance agreement or arrangement of the
type described in Section 2.17, or (except for normal adjustments in the
Ordinary Course of Business) increase in any material respect the
compensation or fringe benefits of, or modify the employment terms of its
directors, officers or employees generally or pay any benefit not required
by the terms in effect on the date hereof of any existing Company Employee
Benefit Plan;
(iv) change in any material respect its accounting methods, principles or
practices, except insofar as may be required by a generally applicable
change in GAAP;
(v) pay any pre-petition liability other than (x) liabilities in
connection with the assumption of pre-petition contracts and with respect
to wages, taxes, customer refunds and other related expenses that the
Debtors are authorized to pay by the Bankruptcy Court and (y) adequate
protection payments and the payment of the Net Cash Proceeds (as defined in
the DIP Loan Agreement) under the Debtor Tower Agreement to the Pre-
Petition Lenders, in each case as authorized by the Bankruptcy Court;
(vi) amend its certificate of incorporation, by-laws or other comparable
organizational documents;
(vii) sell, assign, transfer or license any material Debtor Licenses and
Authorizations or Debtors' Intellectual Property, other than in the
Ordinary Course of Business;
(viii) enter into, materially amend, terminate, take or omit to take any
action that would constitute a material violation of or default under, or
waive any material rights under, any of the Debtor Licenses and
Authorizations, or any contract or agreement which, if existing on the date
hereof, would be required to be set forth in Section 2.13 of the Company
Disclosure Schedule, other than in the Ordinary Course of Business;
provided, that (x) without such consent, the Company may enter into the
Master Lease (as defined in the Debtor Tower Agreement) and (y) with such
consent, which shall not be unreasonably withheld, terminate the Debtor
Tower Agreement and, in connection therewith, enter into a Replacement
Tower Agreement and a Comparable Tower Lease;
(ix) make or commit to make any capital expenditure not set forth in the
capital expense budget set forth as Section 4.5(a) to the Company
Disclosure Schedule;
(x) (A) declare, set aside or pay any dividends on, or make any other
distributions (whether in cash, securities or other property) in respect
of, any of its outstanding capital stock (other than, with respect to a
Debtor other than the Company, to its corporate parent), (B) split, combine
or reclassify any of its outstanding capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of, or in
substitution for, shares of its outstanding capital stock, or (C) purchase,
redeem or otherwise acquire any shares of outstanding capital stock or any
rights, warrants or options to acquire any such shares;
(xi) issue, sell, grant or pledge any shares of its capital stock, any
other voting securities or any securities convertible into or exchangeable
for, or any rights, warrants or options to acquire, any such shares, voting
securities or convertible or exchangeable securities, other than upon the
exercise of options, or upon the conversion or exchange of securities,
outstanding on the date of this Agreement;
(xii) settle or compromise any material Tax liability or any pending or
threatened suit or action other than consistent with the Company's practice
since the Filing Date or pursuant to the terms of the Amended Plan or make
any material Tax election;
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(xiii) establish, or transfer any assets to, a trust for purposes of
funding any Debtor Employee Benefit Plan, including, without limitation, a
so-called "rabbi trust," except as required by applicable law; or
(xiv) agree in writing or otherwise to take any of the foregoing actions.
(b) Without limiting the generality of the foregoing, prior to the Closing,
the Buyer shall not, and shall not permit any Buyer Subsidiary to, without the
prior written consent of the Company, and except as otherwise contemplated by
this Agreement or the Amended Plan, or as otherwise provided in Section 4.5 of
the Buyer Disclosure Schedule:
(i) Dispose of any of its assets or acquire or Dispose of any assets or
shares or other equity interests in or securities of any Business Entity,
other than in the Ordinary Course of Business, except for (A) the mortgage,
pledge or encumbering of such assets, shares, equity interests or
securities pursuant to agreements existing as of the date of this Agreement
or agreements entered into to provide funding, in whole or in part, for the
amounts payable by the Buyer under this Agreement or the Amended Plan or
(B) the acquisition of such assets, shares, equity interests or securities
of any other Person with an aggregate purchase price not exceeding
$25,000,000;
(ii) except for borrowings under the terms of its Second Amended and
Restated Credit Agreement (Tranche A and Tranche C Facilities), dated as of
June 29, 1998, by and among Arch Paging, Inc., The Bank of New York, Royal
Bank of Canada, Toronto Dominion (Texas), Inc. and the other parties
thereto, and its Second Amended and Restated Credit Agreement (Tranche B
Facility), dated as of June 29, 1998, by and among Arch Paging, Inc., The
Bank of New York, Royal Bank of Canada, Toronto Dominion (Texas), Inc. and
the other parties thereto, each as amended from time to time, or borrowings
to provide funding for the amounts payable by Buyer under this Agreement or
the Amended Plan, create, incur or assume any indebtedness for borrowed
money not currently outstanding (including obligations in respect of
capital leases); assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other person; or make any loans, advances or capital
contributions to, or investments in, any other person;
(iii) change in any material respect its accounting methods, principles
or practices, except insofar as may be required by a generally applicable
change in GAAP;
(iv) amend its certificate of incorporation, by-laws or other comparable
organizational documents;
(v) sell, assign, transfer or license any material Buyer Licenses and
Authorizations or Buyer Intellectual Property, other than in the Ordinary
Course of Business;
(vi) enter into, materially amend, terminate, take or omit to take any
action that would constitute a material violation of or default under, or
waive any material rights under, any of the Buyer Licenses and
Authorizations or any contract or agreement which, if existing on the date
hereof, would be required to be set forth in Section 3.13 of the Buyer
Disclosure Schedule, other than in the Ordinary Course of Business;
(vii) make or commit to make any capital expenditure not set forth in the
capital expense budget attached as Section 4.5(b) to the Buyer Disclosure
Schedule;
(viii) except as required under agreements existing as of the date of
this Agreement, (A) declare, set aside or pay any dividends on, or make any
other distributions (whether in cash, securities or other property) in
respect of, any of its outstanding capital stock (other than, with respect
to any Buyer Subsidiary, to its corporate parent), (B) split, combine or
reclassify any of its outstanding capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its outstanding capital stock, or (C) purchase,
redeem or otherwise acquire any shares of outstanding capital stock or any
rights, warrants or options to acquire any such shares, except, in the case
of this clause (C), for the acquisition of shares from holders of options
in full or partial payment of the exercise price payable by such holder
upon exercise of options;
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(ix) issue, sell, grant, pledge or, if outstanding as of the date hereof,
change the material terms of, any shares of its capital stock, any other
voting securities or any securities convertible into or exchangeable for,
or any rights, warrants or options to acquire, any such shares, voting
securities or convertible or exchangeable securities, other than pursuant
to the terms of any benefit plan as in effect on the date of this Agreement
in accordance with past practice or upon the exercise of options, or upon
the conversion or exchange of securities, outstanding on the date of this
Agreement;
(x) make any material Tax election or settle or compromise any material
Tax liability or any pending or threatened suit or action;
(xi) establish, or transfer any assets to, a trust for purposes of
funding any Buyer Employee Benefit Plan, including, without limitation, a
so-called "rabbi trust," except as required by applicable law; or
(xii) agree in writing or otherwise to take any of the foregoing actions.
4.6 Notice of Breaches. Each Party shall promptly deliver to the other
Parties written notice of any event or development that would (a) render any
statement, representation or warranty of such Party in this Agreement
(including its respective Disclosure Schedule) inaccurate or incomplete in any
respect, or (b) constitute or result in a breach by such Party of, or a
failure by such Party to comply with, any agreement or covenant in this
Agreement applicable to such Party. No such disclosure shall be deemed to
avoid or cure any such misrepresentation or breach.
4.7 Exclusivity.
(a) Except as contemplated by the Debtor Tower Agreement, from and after the
date hereof, the Parent and the Company shall not, and shall cause each other
Debtor and each of their respective directors, officers, employees, financial
advisors, representatives or agents not to, directly or indirectly, (i)
solicit, initiate, engage or participate in or encourage discussions or
negotiations with any person or entity (other than the Buyer) concerning any
merger, consolidation, sale of material assets, tender offer for,
recapitalization of or accumulation or acquisition of securities issued by any
Debtor, proxy solicitation or other business combination involving any Debtor
(collectively, "Company Acquisition Proposals") or (ii) provide any non-public
information concerning the business, properties or assets of any Debtor to any
person or entity (other than to the Buyer and to the Debtors' creditors in
accordance with existing confidentiality arrangements). The Parent and the
Company shall, and shall cause each of the other Debtors to, immediately cease
any and all existing activities, discussions or negotiations with any person
other than the Buyer with respect to any Company Acquisition Proposal. The
Parent and the Company shall immediately notify the Buyer of, and shall
disclose to the Buyer all details of, any inquiries, discussions or
negotiations of the nature described in the first sentence of this Section
4.7. The provisions of this Section 4.7 are referred to in this Agreement as
the "Exclusivity Provisions".
(b) Notwithstanding the provisions of subsection (a) above, prior to the
entry of the Confirmation Order, the Debtors may, to the extent required by
the Bankruptcy-Related Requirements, or to the extent that the Board of
Directors of the Company determines, in good faith after consultation with
outside legal counsel, that such Board's fiduciary duties under applicable law
require it to do so, participate in discussions or negotiations with, and,
subject to the requirements of paragraph (c) below, furnish information to any
person, entity or group after such person, entity or group has delivered to
the Debtors, in writing, an unsolicited bona fide offer to effect a Company
Acquisition Proposal that the Board of Directors of the Company in its good
faith judgment determines, after consultation with its independent financial
advisors, would result in a transaction more favorable to the stakeholders of
the Debtors from a financial point of view than the transactions contemplated
hereby and for which financing, to the extent required, is then committed (or
which, in the good faith judgment of such Board, is reasonably capable of
being obtained) and which (in the good faith judgment of such Board) is likely
to be consummated (a "Company Superior Proposal"). In the event the Debtors
receive a Company Superior Proposal, nothing contained in this Agreement (but
subject to the terms hereof) will prevent the Board of Directors of the
Company from approving such Company Superior Proposal or requesting
authorization of such Company Superior Proposal from the Bankruptcy Court, if
such Board determines, in good faith, after
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consultation with outside legal counsel, that such action is required by its
fiduciary duties under applicable law; in such case, the Board of Directors of
the Company may terminate this Agreement pursuant to Section 6.1(e) hereof;
provided, however, that the Company shall not terminate this Agreement until
at least 48 hours after the Buyer's receipt of a copy of such Company Superior
Proposal.
(c) Notwithstanding anything to the contrary in this Section 4.7, the Parent
and the Company shall not, and shall cause each of the other Debtors not to,
provide any non-public information to a third party unless: (i) the Debtors
provide such non-public information pursuant to a non-disclosure agreement
with terms regarding the protection of confidential information at least as
restrictive as such terms in the Confidentiality Agreements between the Parent
and the Buyer dated March 26, 1998 and June 10, 1998 (the "Confidentiality
Agreement"); and (ii) such non-public information has previously been
delivered or made available to the Buyer.
(d) Except as contemplated by the Asset Purchase and Sale Agreement between
certain subsidiaries of Arch Communications Group, Inc., and OmniAmerica,
Inc., dated April 10, 1998, from and after the date hereof the Buyer shall
not, and shall cause each Buyer Subsidiary and each of their respective
directors, officers, employees, financial advisors, representatives or agents
not to, directly or indirectly, (i) solicit, initiate, engage or participate
in or encourage discussions or negotiations with any person or entity (other
than the Parent, the Company and, in connection with the transactions
contemplated by this Agreement, the Official Committee of Unsecured Creditors
of the Company) concerning any merger (other than mergers of the Buyer
Subsidiaries in connection with acquisitions of other businesses by the Buyer
(x) with a fair market value not in excess of $25,000,000 and (y) that would
not upon the closing thereof be in breach of the Buyer's obligations under
Section 4.5), consolidation, sale of material assets, tender offer for,
recapitalization of or accumulation or acquisition of securities issued by the
Buyer or any of the Buyer Subsidiaries, proxy solicitation or other business
combination (other than business combinations of the Buyer Subsidiaries in
connection with acquisitions of other businesses by the Buyer (x) with a fair
market value not in excess of $25,000,000 and (y) that would not upon the
closing thereof be in breach of the Buyer's obligations under Section 4.5),
involving the Buyer or any Buyer Subsidiary (collectively, "Buyer Acquisition
Proposals") or (ii) except as permitted by the foregoing clause (i), provide
any non-public information concerning the business, properties or assets of
the Buyer or any Buyer Subsidiary to any person or entity (other than the
Debtors or any of the Buyer's financing sources). The Buyer and the Buyer
Subsidiaries will immediately cease any and all existing activities,
discussions or negotiations with any person other than the Company with
respect to any Buyer Acquisition Proposal. The Buyer shall immediately notify
the Company of, and shall disclose to the Company all details of, any
inquiries, discussions or negotiations of the nature described in the first
sentence of this Section 4.7(d).
(e) Notwithstanding the provisions of subsection (d) above, prior to the
Meeting (as defined in Section 4.12), the Buyer may, to the extent that the
Board of Directors of the Buyer determines, in good faith, after consultation
with outside legal counsel, that such Board's fiduciary duties under
applicable law require it to do so, participate in discussions or negotiations
with, and, subject to the requirements of paragraph (f) below, furnish
information to any person, entity or group after such person, entity or group
has delivered to the Buyer, in writing, an unsolicited bona fide offer to
effect a Buyer Acquisition Proposal that the Board of Directors of the Buyer
in its good faith judgment determines, after consultation with its independent
financial advisors, would result in a transaction more favorable to the
shareholders of the Buyer from a financial point of view than the transactions
contemplated hereby and for which financing, to the extent required, is then
committed (or which, in the good faith judgment of such Board, is reasonably
capable of being obtained) and which (in the good faith judgment of such
Board) is likely to be consummated (a "Buyer Superior Proposal"). In the event
the Buyer receives a Buyer Superior Proposal, nothing contained in this
Agreement (but subject to the terms hereof) will prevent the Board of
Directors of the Buyer from recommending to the Buyer's shareholders such
Buyer Superior Proposal if such Board determines, in good faith, after
consultation with outside legal counsel, that such action is required by its
fiduciary duties under applicable law.
(f) Notwithstanding anything to the contrary in this Section 4.7, the Buyer
shall not provide any non-public information to a third party unless: (i) the
Buyer provides such non-public information pursuant to a non-
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disclosure agreement with terms regarding the protection of confidential
information at least as restrictive as such terms in the Confidentiality
Agreement; and (ii) such non-public information has previously been delivered
or made available to the Company.
4.8 Breakup Fee Provisions. (a) In the event that (i) the Buyer terminates
this Agreement pursuant to Section 6.1(b) or Section 6.1(i) or (ii) the
Company or the Buyer terminates this Agreement pursuant to Section 6.1(c) or
6.1(d) (in either case as a result of the failure of the condition set forth
in Section 5.1(h) to be satisfied due to (A) the failure of the creditors of
the Debtors entitled to vote on the Amended Plan (other than holders of Class
7, 8 or 9 Claims) to vote in favor of the Amended Plan, (B) the withdrawal of
the Amended Plan by the Debtors, the filing of any other plan of
reorganization by the Debtors, or the modification or amendment of any
material provision of the Amended Plan by the Debtors, in each case without
the prior written consent of the Buyer, or (C) the confirmation of any other
plan of reorganization filed by any person other than the Debtors), (iii)
except as set forth in Section 4.8(a) of the Company Disclosure Schedule, the
Debtors sell or otherwise transfer (other than to the Buyer or the Buyer
Subsidiaries) all or any substantial portion of their assets as part of a sale
approved pursuant to Section 363 of the Bankruptcy Code, (iv) the Company has
terminated this Agreement pursuant to Section 6.1(e) (a termination under (i),
(ii), (iii) or (iv) being herein called a "Major Breakup Event"), or (v) the
Buyer or the Company terminates this Agreement pursuant to Section 6.1(j) (a
"Minor Breakup Event"; together with the Major Breakup Events, the "Breakup
Events"), and at the time of any such Breakup Event the Buyer is not in
material breach of any material covenant or obligation required to be
performed by the Buyer hereunder at or before such time, and is not in breach
of its representations and warranties contained in this Agreement (except
where the matters in respect of which such representations and warranties are
in breach would not in the aggregate have a Buyer Material Adverse Effect),
then the Company shall pay to the Buyer as promptly as practicable after
demand therefor (but in no event later than the third Business Day thereafter
and, in the case of a Minor Breakup Event, only if and when any Pinnacle
Breakup Amount referred to below is actually received by the Debtors) (x) in
the case of a Major Breakup Event, the amount of $25,000,000, and (y) in the
case of a Minor Breakup Event, an amount equal to one-half of any amount
("Pinnacle Breakup Amount") actually received by the Debtors pursuant to
Section 7.05 of the Debtor Tower Agreement (or pursuant to a settlement with
Pinnacle in lieu thereof) (in either case, the "Buyer Breakup Fee"). The
claims of the Buyer to the Buyer Breakup Fee shall constitute a first priority
administrative expense under 11 U.S.C. (S)507(a)(1).
(b) In the event that (i) the Company terminates this Agreement pursuant to
Section 6.1(b) or (g), or (ii) the Buyer or the Company terminates this
Agreement after June 30, 1999 pursuant to Section 6.1(c) or (d) (in either
case as a result of the Closing not occurring due to the Buyer's failure to
obtain the financing necessary to effect the transactions contemplated hereby
and by the Amended Plan under circumstances when all the conditions set forth
in Section 5.1 (other than the condition set forth in Section 5.1(j)) and
Section 5.2 are satisfied, or would have been satisfied had such financing
been obtained) and at the time of such termination each of the Company and the
Parent is not in material breach of any material covenant or obligation
required to be performed by the Company or the Parent hereunder at or before
such time and is not in breach of its representations and warranties contained
in this Agreement (except where the matters in respect of which such
representations and warranties are in breach would not in the aggregate have a
Debtor Material Adverse Effect), then the Buyer shall pay to the Company as
promptly as practicable after demand therefor (but in no event later than the
third Business Day thereafter) the amount of $32,500,000 (the "Company Breakup
Fee").
(c) This Section 4.8 shall be effective only from and after the date the
Initial Merger Order is signed by the Bankruptcy Court.
4.9 Nasdaq National Market Quotation. The Buyer shall use its best efforts
to have the shares of Buyer Common Stock (including all such shares issuable
upon conversion of the Buyer Class B Common Stock and upon exercise of the
Buyer Participation Warrants) to be issued as contemplated by the Amended Plan
and this Agreement approved for quotation on the Nasdaq National Market prior
to the Closing.
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4.10 Delivery of Financial Statements. As promptly as possible following the
last day of each month after the date of this Agreement until the Closing
Date, and in any event within 35 days after the end of each such month, each
of the Buyer and the Company shall deliver to the other its unaudited
consolidated balance sheet and the related consolidated statements of
operations and cash flows for the one-month period then ended, all certified
by its chief financial officer to the effect that such interim financial
statements are prepared in accordance with GAAP (except as otherwise described
therein) on a consistent basis as with each Party's audited financial
statements and fairly present the consolidated financial condition and results
of operations of each Party as of the date thereof and for the period covered
thereby (collectively, the "Interim Monthly Financial Statements"). As
promptly as possible following the last day of each fiscal quarter, and in any
event within 45 days after the end of each such quarter, each of the Buyer and
the Company shall deliver to the other its unaudited consolidated balance
sheet and the related unaudited consolidated statements of operations and cash
flows for the year-to-date period then ended, prepared in accordance with GAAP
(except as otherwise described therein) applied on a consistent basis as with
the Audited Financial Statements, which comply as to form with the applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto (collectively, the "Unaudited Quarterly Financial
Statements"). The Company shall furnish the Buyer with all information
(including, without limitation, the Audited Financial Statements and the
Unaudited Quarterly Financial Statements, pro forma financial information and
projections included in the Disclosure Statement) and shall take such other
action including obtaining any necessary consents and comfort letters (in
customary form and scope) from its accountants, as the Buyer may reasonably
request in connection with any offering of securities of the Buyer used to
fund the amounts to be paid by the Buyer under the Amended Plan or the working
capital requirements of the Buyer following the Closing.
4.11 Full Access. Each of the Buyer, the Parent and the Company shall permit
representatives of the other to have full access (at all reasonable times, and
in a manner so as not to interfere with normal business operations) to all
premises, properties, financial and accounting records, contracts, other
records and documents, and personnel, of or pertaining to such Party. Each of
the Buyer, the Parent and the Company shall cause its officers and management
to cooperate fully with the representatives and agents of such other Party and
shall make themselves available to the extent reasonably necessary to complete
the due diligence process and the consummation of the transactions
contemplated hereby. The Parent and the Company shall, at the request of the
Buyer, introduce the Buyer to its principal suppliers and employees to
facilitate discussions between such persons and the Buyer in regard to the
conduct of the businesses of the Surviving Corporation following the Closing.
4.12 Stockholders Approval; Meeting. The Buyer shall take all action
reasonably necessary in accordance with applicable law, the rules of the
Nasdaq National Market, this Agreement and the Buyer's Restated Certificate of
Incorporation, as amended, and By-laws, as amended, duly to convene a meeting
of its stockholders (the "Meeting") as promptly as practicable to consider and
vote upon (i) the Buyer Charter Amendment in the form attached as Exhibit F
hereto (the "Buyer Charter Amendment") and (ii) the Buyer Share Issuance. The
Buyer will (i) subject to Section 4.7(e), recommend in the Proxy Statement (as
defined in Section 4.13(a)) that its stockholders vote in favor of the Buyer
Charter Amendment and the Buyer Share Issuance (the "Buyer Recommendation")
and (ii) subject to Section 4.7(e), use its best efforts to cause to be
solicited proxies from stockholders of the Buyer to be voted at the Meeting in
favor of the Buyer Charter Amendment and the Buyer Share Issuance and to take
all other actions necessary or advisable to secure the vote or consent of
stockholders required to approve the Buyer Charter Amendment and the Buyer
Share Issuance.
4.13 Proxy Statement, Disclosure Statement, Etc.
(a) The Buyer shall promptly after execution of this Agreement prepare and
file with the SEC under the Exchange Act, and shall use its best efforts to
have declared effective by the SEC as soon as practicable thereafter and shall
thereafter promptly mail to its stockholders, a proxy statement/prospectus for
the Meeting and to effect the Stockholder Rights Offering (the "Proxy
Statement"). The Buyer shall also take any action required to be taken under
state blue sky laws or other securities laws in connection with the
Stockholder Rights Offering. The Proxy Statement shall be mailed to
stockholders of the Buyer at least 20 business days in advance of the date of
the Meeting. The Company shall furnish the Buyer with all information
(including, without limitation, its
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Audited Financial Statements and the Unaudited Quarterly Financial Statements,
pro forma financial information and projections included in the Disclosure
Statement) and shall take such other action (including obtaining any necessary
consents from the accountants) as the Buyer may reasonably request in
connection with the Proxy Statement. The Buyer shall consult with the Company
and its counsel in connection with, and shall permit the Company and its
counsel to participate in, the preparation of the Proxy Statement and any
amendments or supplements thereto.
(b) The Buyer shall promptly notify the Company of the receipt of the
comments of the SEC and of any requests by the SEC for amendments or
supplements to the Proxy Statement or for additional information, and shall
promptly supply the Debtors with copies of all correspondence between it (or
its representatives) and the SEC (or its staff) with respect thereto, and
shall permit counsel for the Company to participate in any telephone
conferences or meetings with the staff of the SEC. If, at any time prior to
the Meeting, any event should occur relating to or affecting a Party or its
officers or directors, which event should be described in an amendment or
supplement to the Proxy Statement, such Party shall promptly inform the other
Party and shall cooperate in promptly preparing, filing and clearing with the
SEC and, if required by applicable securities law, mailing to the Buyer's
stockholders, as the case may be, such amendment or supplement.
(c) The Buyer shall furnish the Company with all information (including
historical and pro forma financial information and projections of the Buyer)
and shall take such other action as the Company may reasonably request in
connection with the Disclosure Statement. The Company shall consult with the
Buyer and its counsel in connection with, and shall permit the Buyer and its
counsel to participate in, the preparation and Bankruptcy Court approval
process of the Disclosure Statement and any amendments or supplements thereto.
4.14 Application of Pinnacle Proceeds Application of Pinnacle Proceeds. The
Buyer, the Parent and the Company agree that the net proceeds from the Closing
(as defined in the Debtor Tower Agreement) shall promptly be paid to the Pre-
Petition Agent for the benefit of the Pre-Petition Lenders.
4.15 FCC Filing. As soon as practicable following the date of this Agreement
and in no event later than the later to occur of the date fifteen days
following the execution hereof or the date ten days following the filing with
the Bankruptcy Court of the Amended Plan, the Parties shall jointly prepare
and file applications (the "FCC Applications") on the appropriate FCC forms in
accordance with all applicable FCC rules and regulations requesting (i) the
FCC's consent to the transfer of the control of the Debtor Authorizations to
the Buyer, (ii) to the extent that such consent is required, the FCC's consent
to the transfer of control of the Buyer Authorizations from the Buyer's
current stockholders to the Buyer's stockholders immediately following the
consummation of the transactions contemplated hereby in accordance with the
Amended Plan, (iii) the termination of the hearing in WT Docket No. 97-115, In
the Matter of MobileMedia Corporation, et al. (the "Hearing") without any
further findings adverse to the Debtors, or to the Debtor Authorizations or
otherwise materially restricting the Buyer's or the Reorganized Debtors'
ability to own or operate the properties, assets and businesses of the Debtors
following the Closing, and (iv) the grant to the Buyer of permanent license
authority to operate those stations listed on Attachment C of Public Notice DA
97-78 (January 13, 1997) (the "Attachment C Stations"), as to which Debtors
are currently operating under a grant of interim operating authority, or in
the Ralternative, a determination by the FCC that as to such stations, the
Buyer will enjoy protection from, and rights of incumbency as to, any future
Market Area Licensee authorized to operate on the frequencies licensed under
interim operating authority. The Parties shall cooperate in providing all
information and taking all steps necessary to expedite the preparation, filing
and prosecution of the FCC Applications with the FCC. In the event any person
or entity petitions the FCC to deny any FCC Application, or petitions for any
further proceedings in the Hearing, or otherwise challenges the grant of any
FCC Application before the FCC, or in the event the FCC approves the transfer
of control of the Debtor Authorizations (and, if necessary, the Buyer
Authorizations), and any person requests reconsideration or judicial review of
such order, then the Parties shall take such reasonable actions as are
necessary to oppose such petition or challenge before the FCC or defend such
action and the order of the FCC before the judiciary diligently and in good
faith; provided, however, that nothing contained herein shall be deemed to
require the Buyer to intervene in the Hearing or otherwise to defend the
Debtors as to any allegations
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or proceedings relating to the allegations before the FCC in the Hearing,
except as reasonably required to support the transfer of control of the Debtor
Authorizations to the Buyer. The Company shall provide the Buyer (whether or
not the Buyer intervenes or otherwise participates in the Hearing) with
reasonable advance notice of, and a right to participate in, any meetings or
hearings relating to the FCC Applications or the Hearing, and a right to
review in advance any correspondence, agreements, or pleadings which may be
submitted by the Debtors to the FCC or any other party to the Hearing with
regard to the FCC Applications or any proceedings relating to the Hearing. In
each such case, each Party shall bear its own costs and expenses of
prosecuting such application to a favorable conclusion, to the end that the
transactions contemplated by this Agreement and the Amended Plan may be
consummated.
The Parent and the Company each covenants that it will continue to use
reasonable best efforts to complete the program, voluntarily undertaken by the
Debtors and monitored by its independent regulatory consultant, to inspect and
audit the Debtors' transmitter site facilities and license data, within the
time frames established by Debtors' independent regulatory consultant and
reported to the FCC, and will provide Buyer with periodic updates of the
progress of the program, including copies of status reports prepared by the
Debtors' independent regulatory consultant and furnished to the Company's
Board of Directors.
4.16 Indemnification; Director and Officers Insurance. (a) The Buyer agrees
that, to the extent set forth in the Amended Plan and only to such extent, all
rights to indemnification and exculpation from liabilities for acts or
omissions occurring prior to the Effective Time now existing in favor of the
current or former directors or officers of the Debtors as provided in their
respective charters or by-laws (or comparable organization documents) and any
indemnification agreements of the Debtors (including with Alvarez & Marsal,
Inc.) shall survive the Merger and shall continue in full force and effect in
accordance with their terms for a period of not less than three years from the
Effective Time and the obligations of the Debtors in connection therewith
shall be assumed by the Buyer. To the extent set forth in the Amended Plan and
only to such extent, the Buyer shall provide, or shall cause the Surviving
Corporation to provide, the Debtors' current directors and officers an
insurance and indemnification policy (including any fiduciary liability
policy) that provides coverage with respect to any claims made during the
three-year period following the Effective Time for events occurring prior to
the Effective Time.
(b) The provisions of this Section 4.16 are intended to be for the benefit
of, and shall be enforceable by, each person who is or has been a director or
officer of any of the Debtors (except for such Persons who are not entitled to
indemnification as provided for in the Amended Plan) and such director's or
officer's heirs and personal representatives and shall be binding on all
successors and assigns of the Buyer and the Surviving Corporation.
4.17 State Takeover Laws. If any "fair price", "business combination" or
"control share acquisition" statute or other similar statute or regulation
shall become applicable to the transactions contemplated hereby, the Buyer,
the Parent and the Company and their respective Boards of Directors shall use
all reasonable efforts to grant such approvals and take such actions as are
necessary so that the transactions contemplated hereby may be consummated as
promptly as practicable on the terms contemplated hereby and shall otherwise
act to minimize the effects of any such statute or regulation on the
transactions contemplated hereby.
4.18 Employees.
(a) Buyer's Benefits for Affected Employees. As promptly as practicable
following the Effective Time, the Buyer shall transfer to one or more employee
benefit plans maintained by the Buyer any employee of the Parent, the Company
or any of the Company's Subsidiaries who becomes an employee of the Buyer or
any of its Subsidiaries (collectively, the "Affected Employees"). Prior to
such transfer, the Buyer shall maintain, or shall cause the Company and its
Subsidiaries to maintain, compensation and employee benefits plans and
arrangements for the Affected Employees that are comparable to those provided
for under the compensation arrangements and Company Employee Benefit Plans as
in effect on the date hereof; provided, that for such period, the Buyer shall
not reduce the severance benefits payable to any terminated employee or
Affected Employee below the level
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currently provided to such terminated employee or Affected Employee by the
Company. Notwithstanding the foregoing, the Buyer shall have the right,
following the Effective Time, in the good faith exercise of its managerial
discretion, to terminate the employment of any employee. Nothing in this
Agreement shall be construed as granting to any employee any rights of
continuing employment.
(b) Honoring Accrued Vacation and 1998 Employee Incentive Plan. Without
limiting the generality of the foregoing subsection, and to the extent
permitted by law, the Buyer shall (i) honor all vacation, holiday, sickness
and personal days accrued by Affected Employees and, to the extent applicable,
former employees of the Parent, the Company and its Subsidiaries ("Former
Employees") as of the Effective Time and (ii) for purposes of the Company's
1998 Employee Incentive Plan, in the event the payments under the 1998
Employee Incentive Plan would be paid or payable after the Closing, (x) use
the evaluations of the executives covered by such plan prepared in good faith,
and to be provided by the Company to the Buyer at least five business days
prior to the Closing and (y) calculate the Company's 1998 EBITDA in a manner
consistent with the Company's current accounting practices, in connection with
the 1998 Employee Incentive Plan and without deduction for any restructuring
or other special or one-time charge relating to the transactions contemplated
by this Agreement.
(c) Participation in Benefit Plans. Employees and, to the extent applicable,
Former Employees shall be given credit, to the extent permitted by law, for
all service with the Parent, the Company and its Subsidiaries (or service
credited by the Company or such Subsidiaries) under all Buyer Employee Benefit
Plans currently maintained by the Buyer or any of its Subsidiaries in which
they are or become participants for purposes of eligibility, vesting, level of
participant contributions and benefit accruals (but subject to an offset, if
necessary, to avoid duplication of benefits) to the same extent as if rendered
to the Buyer or any of its Subsidiaries other than as otherwise provided in
clause (a) or (b) of this Section 4.18. The Buyer shall cause to be waived any
pre-existing condition limitation under its welfare plans that might otherwise
apply to an Affected Employee or, to the extent applicable, a Former Employee.
The Buyer agrees to recognize (or cause to be recognized) the dollar amount of
all expenses incurred by Affected Employees or, to the extent applicable,
Former Employees, during the calendar year in which the Effective Time occurs
for purposes of satisfying the calendar year deductions and co-payment
limitations for such year under the relevant benefit plans of the Buyer and
the Buyer Subsidiaries.
4.19 Rights Agreement. The Buyer shall not (i) amend the Rights Agreement
other than as contemplated by Section 3.23 or (ii) take any action with
respect to, or make any determination under, the Rights Agreement (including a
redemption of the Preferred Rights) with the purpose of facilitating a Buyer
Acquisition Proposal.
4.20 Buyer Rights Offering; Registration Statement. (a) As specified in the
Amended Plan, the Buyer will offer (the "Rights Offering") to the holders of
certain Allowed Claims as specified in the Amended Plan pursuant to the
Rights, the opportunity to purchase, for consideration of $2.00 per share in
cash (the "Subscription Price"), an aggregate of 108,500,000 shares of Buyer
Common Stock, and Buyer Class B Common Stock, if applicable ("Rights Shares").
The Rights Offering will be made substantially on the terms set forth in
Schedule III hereto.
(b) Concurrently with the execution of this Agreement, the Company and the
Buyer have entered into a Standby Purchase Commitment with each Standby
Purchaser and, prior to or at the Closing, the Buyer will execute and deliver
to each of the Standby Purchasers the Registration Rights Agreement.
(c) The Buyer will file with the SEC a registration statement as required
under the Securities Act to effect the Rights Offering as contemplated hereby
(the "Registration Statement") as promptly as practicable (in any event within
15 days) after the date of this Agreement, and the Buyer will use its best
efforts to have the Registration Statement declared effective by the SEC as
promptly as practicable thereafter. The Buyer shall also take any action
required to be taken under state blue sky laws or other securities laws in
connection with the Rights Offering. The Parent and the Company shall furnish
the Buyer with all information (including, without limitation, the Audited
Financial Statements and the Unaudited Quarterly Financial Statements, pro
forma financial information and projections included in the Disclosure
Statement) and shall take such other action, including obtaining any necessary
consents and comfort letters (in customary form and scope) from its
accountants, as the Buyer may reasonably request in connection with the
Registration Statement. The Buyer shall consult with the Parent and the
Company and its counsel in connection with, and shall permit the Parent and
the
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Company and its counsel to participate in, the preparation of the Registration
Statement. The Buyer shall cause the Rights to be issued as specified in the
Amended Plan as soon as practicable after the date the Registration Statement
becomes effective but not before approval of Disclosure Statement by the
Bankruptcy Court.
(d) The Buyer shall promptly notify the Parent and the Company of the
receipt of the comments of the SEC and of any requests by the SEC for
amendment or supplements to the Registration Statement or for additional
information, and shall promptly supply the Parent and the Company with copies
of all correspondence between it (or its representatives) and the SEC (or its
staff) with respect thereto, and shall permit counsel for the Parent and the
Company to participate in any telephone conferences or meetings with the staff
of the SEC. If, at any time prior to the Effective Date, any event should
occur relating to or affecting a Party or its officers or directors, which
event should be described in an amendment or supplement to the Registration
Statement, such Party shall promptly inform the other Party and shall
cooperate in promptly preparing, filing and clearing with the SEC and, if
required by applicable securities law, distributing such amendment or
supplement.
4.21 Reimbursement of Buyer's Expenses. As soon as practicable after the
date of receipt of the Initial Merger Order (but in no event later than the
third Business Day thereafter), the Company shall pay to the Buyer, by wire
transfer to a bank account of the Buyer specified in a prior written notice
from the Buyer to the Company, $500,000 in next day funds in partial
reimbursement of the Buyer's expenses in connection with the negotiation and
execution of this Agreement (the "Buyer Reimbursement").
4.22 Stockholder Rights Offering. The Buyer will offer (the "Stockholder
Rights Offering") to the Stockholder Rights Holders, pursuant to the
Stockholder Rights, the opportunity to purchase, for the Subscription Price,
an aggregate of 44,893,166 shares of Buyer Common Stock. The Stockholder
Rights Offering will be made substantially on the terms set forth in Schedule
IV hereto.
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ARTICLE V
Conditions to Closing
5.1 Conditions to Obligations of Each Party. The respective obligation of
each Party to consummate the transactions to be performed by it in connection
with the Closing is subject to the satisfaction, or waiver by such Parties, of
the following conditions:
(a) each of the Buyer Charter Amendment and the Buyer Share Issuance
shall have been approved by the requisite vote of the holders of Buyer
Stock in accordance with the DGCL and the restated certificate of
incorporation, as amended, and by-laws, as amended, of the Buyer;
(b) no statute, rule, order, decree or regulation shall have been enacted
or promulgated by any foreign or domestic Governmental Entity which
prohibits the consummation of the transactions contemplated hereby and all
consents, orders and approvals from all Governmental Entities and other
persons or entities listed in Section 2.3 of the Company Disclosure
Schedule or Section 3.3 of the Buyer Disclosure Schedule shall have been
obtained and shall be in effect;
(c) there shall be no order or injunction of a foreign or United States
federal or state court or other governmental authority of competent
jurisdiction in effect precluding, restraining, enjoining or prohibiting
consummation of the transactions contemplated hereby;
(d) the expiration or early termination of any waiting period under the
HSR Act shall have occurred;
(e) (1) the FCC shall have issued an order (the "FCC Grant") both (i)
consenting to the transfer of the Debtor Authorizations and, to the extent
requested by the Parties, to the transfer of the Buyer Authorizations
without any conditions that would have a Buyer FCC Material Adverse Effect
(as defined below in this Section 5.1(e)) or a Debtor FCC Material Adverse
Effect (as defined below in this Section 5.1(e)) and (ii) terminating the
Hearing without any findings or conclusions (x) that are materially adverse
to the Reorganized Debtors or the Debtor Authorizations or which would have
a material adverse effect on the use of the Debtor Authorizations by the
Reorganized Debtors following the Closing, or (y) which impose any material
monetary forfeiture on the Debtors or the Reorganized Debtors or retain
jurisdiction to impose any material monetary forfeitures in the future on
the Buyer or the Reorganized Debtors based on the activities of the Debtors
prior to the Closing, or (z) which would have a Buyer FCC Material Adverse
Effect or a Debtor FCC Material Adverse Effect; and (2) either (i) the FCC
Grant has become a Final Order (as defined below in this Section 5.1(e)) or
(ii)(a) any condition or conditions under the Bank Lending Documents to the
effect that the FCC Grant shall have become a Final Order (or any condition
or conditions therein having a substantially similar effect) shall have
been satisfied or, if not satisfied, the Bank Lenders shall have waived any
such condition or conditions (or any such condition or conditions having a
substantially similar effect) and (b) any condition or conditions under the
Other Lending Documents to the effect that the FCC Grant shall have become
a Final Order (or any condition or conditions therein having a
substantially similar effect) shall have been satisfied or, if not
satisfied, the Other Lenders shall have waived any such condition or
conditions (or any such condition or conditions having a substantially
similar effect); it being agreed that, for purposes of this Section 5.1(e)
and Section 5.1(h), (A) "Bank Lenders" shall mean, collectively, the
Existing Lenders (as defined in the Bank Commitment Letter) and the Credit
Parties (as so defined), as the same in each case shall exist at the
Closing, (B) "Bank Lending Documents" shall mean the Existing Credit
Agreements (as defined in the Bank Commitment Letter) as amended and
modified by the Amendments (as so defined), (C) "Bank Commitment Letter"
shall mean the Commitment Letter of even date herewith between Arch Paging,
Inc. and the Credit Parties, including the Term Sheet (as defined in such
Bank Commitment Letter), copies of which has been delivered to the Company
by the Buyer, as the same may be amended or modified, (D) "Other Lenders"
shall mean the Lenders (as defined in the Bridge Commitment Letter), as the
same shall exist at the Closing, or, if applicable, any other lenders which
lend funds to Arch Communications, Inc. (or the Buyer or any other Buyer
Subsidiary) pursuant to a Substitute Loan Agreement (as defined below), (E)
"Other Lending Documents" shall mean the Bridge Commitment Letter, Bridge
Loan Agreement (as defined in the Bridge Commitment Letter) or any other
loan agreement,
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indenture or similar agreement (the "Substitute Loan Agreement") entered
into by the Buyer or any Buyer Subsidiary in lieu thereof for purposes of
funding a material portion of the consideration required by the Buyer for
the transactions contemplated by this Agreement, (F) "Bridge Commitment
Letter" shall mean the Bridge Commitment Letter, the Bridge Fee Letter and
the Bridge Engagement Letter, each of even date herewith, between the Buyer
and Arch Communications, Inc., on the one hand, and the Other Lenders, on
the other hand, a copy of which has been delivered by the Buyer to the
Company, as the same may be amended or modified, (G) "Buyer FCC Material
Adverse Effect" shall mean a material adverse effect on the financial
condition and operating income of the Buyer and its subsidiaries, taken as
a whole, excluding any effect generally applicable to the economy or the
industry in which Buyer conducts its business, and (H) "Debtor FCC Material
Adverse Effect" shall mean a material adverse effect on the financial
condition and operating income of the Debtors, taken as a whole, excluding
any effect generally applicable to the economy or the industry in which the
Company conducts its business; and it being further agreed that, for
purposes of this Section 5.1(e), the FCC Grant shall become a "Final Order"
when no request for a stay is pending, no stay is in effect and any
deadline for filing such a request that may be designated by statute or
regulation is past; no petition for rehearing or reconsideration or
application for review is pending and the time for filing any such petition
or application is passed; the FCC does not have the action or decision
under reconsideration on its own motion and the time for initiating any
such reconsideration that may be designated by statute or rule has passed;
and no appeal is pending or in effect and any deadline for filing any such
appeal that may be designated by statute or rule has passed;
(f) each of the Registration Statement and the Proxy Statement shall
have been declared effective and no stop order with respect to either of
the Registration Statement or the Proxy Statement shall be in effect;
(g) the shares of Buyer Common Stock (including all such shares issuable
upon conversion of the Buyer Class B Common Stock and exercise of the Buyer
Participation Warrants) to be issued as contemplated by the Amended Plan
and this Agreement shall have been approved for quotation on the Nasdaq
National Market;
(h) (1) the Confirmation Order (which shall authorize and approve the
assumption by the Debtors of the Assumed Contracts), in a form reasonably
satisfactory to each of the Parties, shall have been entered by the
Bankruptcy Court; and (2) either (i) the Confirmation Order has become a
Final Order (as defined below in this Section 5.1(h)) or (ii) (a) any
condition or conditions under the Bank Lending Documents to the effect that
the Confirmation Order shall have become a Final Order (or any condition or
conditions therein having a substantially similar effect) shall have been
satisfied or, if not satisfied, the Bank Lenders shall have waived any such
condition or conditions (or any such condition or conditions having a
substantially similar effect), and (b) any condition or conditions under
the Other Lending Documents to the effect that the Confirmation Order shall
have become a Final Order (or any condition or conditions therein having a
substantially similar effect) shall have been satisfied or, if not
satisfied, the Other Lenders shall have waived any such condition or
conditions (or any such condition or conditions having a substantially
similar effect), it being agreed that, for purposes of this Section 5.1(h),
the Confirmation Order shall become a "Final Order" when it shall have been
in full force and effect for eleven days without any stay or material
modification or amendment thereof, and when the time to appeal or petition
for certiorari designated by statute or regulation has expired and no
appeal or petition for certiorari is pending or, if an appeal or petition
for certiorari has been timely filed or taken, the order or judgment of the
tribunal has been affirmed (or such appeal or petition has been dismissed
as moot) by the highest court (or other tribunal having appellate
jurisdiction over the order or judgment) to which the order was appealed or
the petition for certiorari has been denied, and the time to take any
further appeal or to seek further certiorari designated by statute or
regulation has expired;
(i) no action, suit or proceeding shall be pending or threatened by any
Governmental Entity challenging the validity of the actions taken by the
Buyer, the Debtors or any of their respective Subsidiaries in connection
with the confirmation of the Amended Plan;
(j) the Effective Date (as defined in the Amended Plan) shall have
occurred; and
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(k) the Plan Shares to be issued and distributed as contemplated by
Section 1.3(e) and Section 1.6 shall, when so issued and distributed, be
(i) issued and distributed pursuant to the exemption from registration
under the Securities Act provided by Section 1145 of the Bankruptcy Code,
(ii) freely tradeable by holders thereof who are not then affiliates of the
Buyer or "underwriters" under the Securities Act or 1145(b)(1) of the
Bankruptcy Code and, (iii) except for certificates issuable to such
affiliates or underwriters, represented by certificates bearing no
restrictive legend.
5.2 Conditions to Obligations of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by the Buyer in connection with
the Closing is subject to the satisfaction, or waiver by the Buyer, of the
following conditions:
(a) the representations and warranties of the Parent and the Company
contained in this Agreement, which representations and warranties shall be
deemed for purposes of this Section 5.2(a) not to include any qualification
or limitation with respect to materiality (whether by reference to a
"Debtor Material Adverse Effect" or otherwise), shall be true and correct
as of the Effective Time, with the same effect as though such
representations and warranties were made as of the Effective Time, except
where the matters in respect of which such representations and warranties
are not true and correct, result from actions permitted by this Agreement
or would not in the aggregate have a Debtor Material Adverse Effect;
(b) the Parent and the Company shall each have performed or complied with
its material agreements and covenants required to be performed or complied
with under this Agreement as of or prior to the Closing in all material
respects;
(c) there shall not have occurred between the Agreement Date and the
Closing Date a Debtor Material Adverse Effect;
(d) the Parent and the Company shall have delivered to the Buyer a
certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified in clauses
(a) through (c) of this Section 5.2 is satisfied in all respects;
(e) after each of the Registration Statement and the Proxy Statement has
been declared effective, each of the Rights Offering and the Stockholder
Rights Offering shall have expired and the Buyer shall have received
aggregate proceeds therefrom (and/or from the closings contemplated by the
Standby Purchase Commitments) of at least $217.0 million; and
(f) the Debtors shall have on or prior to the Closing Date paid to the
Pre-Petition Agent for the benefit of the Pre-Petition Lenders at least
$165 million in net proceeds under the Debtor Tower Agreement or a
Replacement Tower Agreement (the "Company Tower Sale Proceeds").
5.3 Conditions to Obligations of the Company. The obligations of the Parent
and the Company to consummate the transactions to be performed by each of them
in connection with the Closing is subject to the satisfaction, or waiver by
the Parent and the Company, of the following conditions:
(a) the representations and warranties of the Buyer contained in this
Agreement, which representations and warranties shall be deemed for
purposes of this Section 5.3(a) not to include any qualification or
limitation with respect to materiality (whether by reference to a "Buyer
Material Adverse Effect" or otherwise), shall be true and correct as of the
Effective Time with the same effect as though such representations and
warranties were made as of the Effective Time, except where the matters in
respect of which such representations and warranties are not true and
correct result from actions permitted by this Agreement or would not in the
aggregate have a Buyer Material Adverse Effect;
(b) the Buyer shall have performed or complied with its material
agreements and covenants required to be performed or complied with under
this Agreement as of or prior to the Closing in all material respects;
(c) there shall not have occurred between the Agreement Date and the
Closing Date a Buyer Material Adverse Effect;
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(d) the Preferred Rights shall not have become nonredeemable,
exercisable, distributed or triggered pursuant to the terms of the Rights
Agreement; and
(e) the Buyer shall have delivered to the Company a certificate (without
qualification as to knowledge or materiality or otherwise) to the effect
that each of the conditions specified in clauses (a) through (d) of this
Section 5.3 is satisfied in all respects.
ARTICLE VI
Termination
6.1 Termination of Agreement. The Parties may terminate this Agreement prior
to the Closing Date only as provided below:
(a) the Parties may terminate this Agreement by mutual written consent;
(b) either the Buyer or the Company may terminate this Agreement by
giving written notice to the other in the event the other is in breach (i)
of its representations and warranties contained in this Agreement, which
representations and warranties shall be deemed for purposes of this Section
6.1(b) not to include any qualification or limitation with respect to
materiality (whether by reference to a "Debtor Material Adverse Effect",
"Buyer Material Adverse Effect" or otherwise), except where the matters in
respect of which such representations and warranties are in breach would
not in the aggregate have a Debtor Material Adverse Effect or a Buyer
Material Adverse Effect, as the case may be, or (ii) of its material
covenants or agreements contained in this Agreement in any material
respect, and in either case such breach is not remedied within 20 business
days of delivery of such written notice thereof (which notice shall specify
in reasonable detail the nature of such breach);
(c) after June 30, 1999, the Buyer may terminate this Agreement by giving
written notice to the Company if the Closing shall not have occurred on or
before such date (unless the failure results primarily from a breach by the
Buyer of any representation, warranty or covenant contained in this
Agreement);
(d) after June 30, 1999, the Company may terminate this Agreement by
giving written notice to the Buyer if the Closing shall not have occurred
on or before such date (unless the failure results primarily from a breach
by the Company of any representation, warranty or covenant contained in
this Agreement);
(e) the Company may terminate this Agreement pursuant to and in
accordance with the provisions of Section 4.7 by giving written notice to
the Buyer, provided that on or before such termination the Debtors shall
have paid to the Buyer the applicable Buyer Breakup Fee;
(f) the Buyer may terminate this Agreement by giving written notice to
the Company if the Initial Merger Order has not been entered by the
Bankruptcy Court on or prior to September 4, 1998, provided, however, that
such termination shall not be effective unless such notice is delivered on
or before October 4, 1998;
(g) The Company may terminate this Agreement by giving written notice to
the Buyer if (i) the Buyer's Board of Directors does not issue the Buyer
Recommendation prior to the Meeting or withdraws or amends in a manner
adverse to the Company the Buyer Recommendation or otherwise materially
breaches the first sentence of Section 4.12 or of Section 4.13(a) or (ii)
at the Meeting the Buyer Charter Amendment or the Buyer Share Issuance is
not approved by the requisite vote of the holders of Buyer Common Stock;
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(h) the Buyer may terminate this Agreement by giving written notice to
the Company if the Company or any other Debtor files either an amendment to
the Amended Plan or any other plan of reorganization in violation of
Section 4.4(b);
(i) the Buyer may terminate this Agreement by giving written notice to
the Company if (x) the Company takes any action (or omits to take any
action) that would constitute a material breach of any of its material
covenants or agreements contained in Section 4.1 or 4.5 but for the
language of such Sections that permits the Company to take actions (or omit
to take actions) required by a Bankruptcy-Related Requirement, and (y) such
action (or omission to take action) is not remedied within 20 business days
of delivery of written notice thereof (which notice shall specify in
reasonable detail the nature of such action (or omission to take action)
and the nature of the resulting breach (but for such language)); and
(j) either the Buyer or the Company may terminate this Agreement by
giving written notice to the other (i) if at the time of giving such notice
the Debtor Tower Agreement shall have been terminated in accordance with
its terms, unless, prior to or simultaneously with such termination, the
Company shall have entered into a definitive agreement (which agreement
(herein called a "Replacement Tower Agreement") shall be comparable in form
and substance to the Debtor Tower Agreement, and any lease (herein called a
"Comparable Tower Lease") entered into in connection therewith shall be
comparable in form and substance to the Master Lease (as defined in the
Debtor Tower Agreement), and a copy of which shall be delivered to Arch
promptly following execution thereof) with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all the assets to be sold to Pinnacle Towers Inc. pursuant to
the Debtor Tower Agreement and which results in net proceeds to the Company
of not less than $165,000,000 (an "Acceptable Sale"), or (ii) on or after
December 31, 1998 if the Closing (as defined in the Debtor Tower Agreement)
or the closing of an Acceptable Sale shall not have occurred on or before
such date.
6.2 Effect of Termination If any Party terminates this Agreement pursuant to
Section 6.1, all obligations of the Parties hereunder shall terminate without
any liability of any Party to any other Party, except for any liability of any
Party for willful or intentional breaches of this Agreement, and except for
the Company's obligation to pay the Buyer Breakup Fee, if applicable, and the
Buyer's obligation to pay the Company Breakup Fee, if applicable, each
pursuant to Section 4.8, which shall survive any such termination; provided
that Article VIII shall also survive any such termination. Any claims arising
out of or in connection with the Company's willful or intentional breach of
any covenant or agreement herein after entry of the Confirmation Order shall
be treated as a claim for an expense of administration under 11 U.S.C.
(S)503(b)(1) of each of Debtor's bankruptcy estate.
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ARTICLE VII
Definitions
For purposes of this Agreement, each of the following defined terms is
defined in the Section of this Agreement indicated below.
<TABLE>
<CAPTION>
DEFINED TERM SECTION
------------ -------
<S> <C>
Affected Employees.................................. 4.18(a)
Agreement........................................... Introduction
Agreement Date...................................... Introduction
Allowed Claims...................................... Preliminary Statement
Amended Plan........................................ Preliminary Statement
Attachment C Stations............................... 4.15
Audited Company Financial Statements................ 2.5(a)
Bank Commitment Letter.............................. 5.1(e)
Bank Lenders........................................ 5.1(e)
Bank Lending Documents.............................. 5.1(e)
Bankruptcy Code..................................... 2.1(a)
Bankruptcy Court.................................... Preliminary Statement
Bankruptcy-Related Requirements..................... 4.5
Bear Stearns........................................ 3.22
Breakup Events...................................... 4.8(a)
Bridge Commitment Letter............................ 5.1(e)
Business Entity..................................... 2.4(a)
Buyer............................................... Introduction
Buyer Acquisition Proposals......................... 4.7(d)
Buyer Affiliated Group.............................. 3.8(a)
Buyer Affiliated Period............................. 3.8(a)
Buyer Authorizations................................ 3.14(a)
Buyer Balance Sheet Date............................ 3.5(b)
Buyer Breakup Fee................................... 4.8(a)
Buyer Business Entity............................... 3.4(a)
Buyer Class B Common Stock.......................... 3.1(b)
Buyer Common Stock.................................. Preliminary Statement
Buyer Charter Amendment............................. 4.12
Buyer Disclosure Schedule........................... Article III
Buyer Distribution.................................. 1.7(c)
Buyer Employee Benefit Plan......................... 3.17(a)
Buyer FCC Applications.............................. 3.14(b)
Buyer FCC Material Adverse Effect................... 5.1(e)
Buyer Intellectual Property......................... 3.11(a)
Buyer Licenses and Authorizations................... 3.14(b)
Buyer Material Adverse Effect....................... Article III
Buyer Participation Warrant Agreement............... Preliminary Statement
Buyer Participation Warrants........................ Preliminary Statement
Buyer Preferred Stock............................... 1.7(a)
Buyer Recommendation................................ 4.12
Buyer Record Date................................... Preliminary Statement
Buyer Reimbursement................................. 4.21
Buyer Reports....................................... 3.5(a)
Buyer Share Issuance................................ 3.1(b)
Buyer State Applications............................ 3.14(b)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM SECTION
------------ -------
<S> <C>
Buyer Stock......................................... 1.7(a)
Buyer Subsidiary.................................... 3.4(c)
Buyer Superior Proposal............................. 4.7(e)
Buyer Warrant Agreement............................. Preliminary Statement
Buyer Warrants...................................... Preliminary Statement
CERCLA.............................................. 2.18(a)
Certificate of Merger............................... 1.1
Chapter 11 Proceeding............................... Preliminary Statement
Closing............................................. 1.2
Closing Date........................................ 1.2
Code................................................ Preliminary Statement
Communications Act.................................. 2.3
Company............................................. Introduction
Company Acquisition Proposals....................... 4.7(a)
Company Balance Sheet Date.......................... 2.5(a)
Company Breakup Fee................................. 4.8(b)
Company Disclosure Schedule......................... Article II
Company Employee Benefit Plans...................... 2.17(a)
Company Financial Statements........................ 2.5(a)
Company Group....................................... 2.8(b)(i)
Company Stock....................................... 1.5(b)
Company Superior Proposal........................... 4.7(b)
Company Tower Sale Proceeds......................... 5.2(f)
Comparable Tower Lease.............................. 6.1(j)
Confidentiality Agreement........................... 4.7(c)
Confirmation Order.................................. Preliminary Statement
Debtor.............................................. Preliminary Statement
Debtor Affiliated Group............................. 2.8(b)
Debtor Affiliated Period............................ 2.8(b)
Debtor Authorizations............................... 2.14(a)
Debtor Business Entity.............................. 2.4(a)
Debtor FCC Applications............................. 2.14(b)
Debtor FCC Material Adverse Effect.................. 5.1(e)
Debtor Licenses and Authorizations.................. 2.14(b)
Debtor Material Adverse Effect...................... Article II
Debtor State Applications........................... 2.14(b)
Debtor Tower Agreement.............................. 2.10
Debtors............................................. Preliminary Statement
Debtors' Intellectual Property...................... 2.11(a)
DGCL................................................ 1.1
DIP Loan Agreement.................................. 1.11
Disclosure Statement................................ 4.4(b)
Dispose............................................. 4.5(a)(i)
Effective Time...................................... 1.1
Employee Benefit Plan............................... 2.17(a)
Environmental Authorization......................... 2.18(e)
Environmental Law................................... 2.18(a)
Environmental Property Transfer Act................. 2.18(f)
ERISA............................................... 2.17(a)
ERISA Affiliate..................................... 2.17(a)
Exchange Act........................................ 2.3
</TABLE>
48
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM SECTION
------------ -------
<S> <C>
Exchange Agent...................................... 1.3
Exclusivity Provisions.............................. 4.7(a)
FCC................................................. 2.3
FCC Applications.................................... 4.15
FCC Grant........................................... 5.1(e)
Filing Date......................................... 2.5(a)
Final Order......................................... 5.1(e)
Former Employees.................................... 4.18(b)
GAAP................................................ 2.5(a)
Governmental Entity................................. 2.3
Hearing............................................. 4.15
HSR Act............................................. 2.3
Indirect Buyer Authorizations....................... 3.14(b)
Indirect Debtor Authorizations...................... 2.14(b)
Initial Merger Motion............................... 4.4(a)
Initial Merger Order................................ 4.4(a)
Interim Monthly Financial Statements................ 4.10
June 30 Unaudited Company Balance Sheet............. 2.5(a)
knowledge........................................... 8.15
Major Breakup Event................................. 4.8(a)
Materials of Environmental Concern.................. 2.18(b)
Meeting............................................. 4.12
Merger.............................................. 1.1
Merger Subsidiary................................... Introduction
Minor Breakup Event................................. 4.8(a)
Most Recent Buyer Balance Sheet..................... 3.5(b)
Ordinary Course of Business......................... 2.3
Other Lenders....................................... 5.1(e)
Other Lending Documents............................. 5.1(e)
Parties............................................. Introduction
Parent.............................................. Introduction
Pinnacle............................................ 2.10
Pinnacle Breakup Amount............................. 4.8(a)
Plan Cash........................................... 1.3
Plan Shares......................................... 1.3
Preferred Rights.................................... 3.2(a)
Prior Plan.......................................... Preliminary Statement
Proxy Statement..................................... 4.13(a)
Registration Rights Agreement....................... Preliminary Statement
Registration Statement.............................. 4.20(c)
Replacement Tower Agreement......................... 6.1(j)
Rights Agreement.................................... 3.2(a)
Rights Offering..................................... 4.20(a)
Rights Offering Adjustment.......................... Schedule II
SEC................................................. 2.5(a)
Securities Act...................................... 2.3
Security Interest................................... 2.3
Standby Purchase Commitments........................ Preliminary Statement
Standby Purchasers.................................. Preliminary Statement
State Authority..................................... 2.14(a)
Stockholder Rights Offering......................... 4.22
</TABLE>
49
<PAGE>
<TABLE>
<CAPTION>
DEFINED TERM SECTION
------------ -------
<S> <C>
Substitute Loan Agreement......................................... 5.1(e)
Surviving Corporation............................................. 1.1
Tax Returns....................................................... 2.8(a)
Taxes............................................................. 2.8(a)
Unaudited Quarterly Financial Statements.......................... 4.10
</TABLE>
50
<PAGE>
ARTICLE VIII
General Provisions
8.1 Press Releases and Announcements. No Party shall issue any press release
or announcement relating to the subject matter of this Agreement without the
prior written approval of the other Parties; provided, however, that any Party
may make any public disclosure it determines in good faith, after consultation
with counsel, is required by law or regulation (in which case the disclosing
Party shall advise the other Parties and provide them with a copy of the
proposed disclosure prior to making the disclosure).
8.2 No Third Party Beneficiaries. Except as otherwise expressly provided
herein, this Agreement shall not confer any rights or remedies upon any person
other than the Parties and their respective successors and permitted assigns.
8.3 Entire Agreement. This Agreement and the exhibits and schedules attached
hereto, including the Amended Plan, and the Confidentiality Agreement
constitute the entire agreement among the Parties and supersede any prior
understandings, agreements or representations by or among the Parties, written
or oral, that may have related in any way to the subject matter of the
Agreement.
8.4 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests or obligations hereunder without the prior
written approval of the other Parties; provided, that the Buyer may assign its
rights under this Agreement to another wholly owned subsidiary of the Buyer by
notice to the Company; provided, further, that the Buyer shall remain liable
for all its obligations hereunder.
8.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.6 Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.7 Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly delivered three business days
after it is sent by registered or certified mail, return receipt requested,
postage prepaid, or two business days after it is sent via a reputable
international overnight courier service, in each case to the intended
recipient as set forth below:
If to the Company: Copy to:
MobileMedia Communications, Inc. Sidley & Austin
Fort Lee Executive Park 875 Third Avenue
One Executive Drive, Suite 500 New York, NY 10022
Fort Lee, NJ 07024 Attn: James D. Johnson
Attn: Chairman--Restructuring
If to the Parent: Copy to:
MobileMedia Corporation Sidley & Austin
Fort Lee Executive Park 875 Third Avenue
One Executive Drive, Suite 500 New York, NY 10022
Fort Lee, NJ 07024 Attn: James D. Johnson
Attn: Chairman--Restructuring
51
<PAGE>
If to the Buyer: Copy to:
Arch Communications Group, Inc. Hale and Dorr LLP
1800 West Park Drive, Suite 250 60 State Street
Westborough, MA 01581 Boston, MA 02109
Attn: Chairman and Chief Executive Attn: Jay E. Bothwick
Officer
Any Party may give any notice, request, demand, claim or other communication
hereunder by personal delivery or telecopy, but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the Party for whom it is intended.
Any Party may change the address to which notices, requests, demands, claims
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State
of Delaware.
8.9 Amendments and Waivers. The Parties may mutually amend any provision of
this Agreement at any time by a written instrument signed by all of the
Parties. No waiver by any Party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
8.10 Severability. If any court of competent jurisdiction determines that
any material provision of this Agreement is invalid or unenforceable, then,
only to the extent the Parties agree, such provision shall be severable and
null and void, and, in such event, such determination shall in no way limit or
affect the enforceability or operative effect of any or all other portions of
this Agreement.
8.11 Expenses. Except as otherwise set forth in this Agreement, each of the
Parties shall bear its or their own costs and expenses (including fees and
expenses of their respective legal, accounting and financial advisors)
incurred in connection with this Agreement and the transactions contemplated
hereby.
8.12 Specific Performance. Each of the Parties acknowledges and agrees that
one or more of the other Parties would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court having jurisdiction over the Parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
8.13 Construction. The language used in this Agreement shall be deemed to be
the language chosen by the Parties hereto to express their mutual intent, and
no rule of strict construction shall be applied against any Party. Any
reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise.
8.14 Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
8.15 Knowledge. For purposes of this Agreement, the term "knowledge" of the
Company and the Buyer shall mean the actual knowledge, after due inquiry, of
the senior executive officers of the Buyer and each of its Subsidiaries and
the Parent, the Company and each other Debtor, respectively.
52
<PAGE>
8.16 Survival of Representations. None of the representations and warranties
made by the Parties herein or the documents or certificates contemplated
hereby, nor the covenants set forth in Article IV, shall survive the Closing.
8.17 Bankruptcy Process. Nothing contained in this Agreement shall be deemed
to limit in any manner the ability of any Debtor to take any position before
or make any motion to the Bankruptcy Court in connection with the Chapter 11
Proceeding; provided, however, that no Debtor shall take any such position or
make any such motion in support of any action or inaction by such Debtor that
would constitute a breach of any covenant of the Company contained in this
Agreement.
8.18 Reverse Stock Split. Notwithstanding anything to the contrary herein
contained, if the Buyer effects the reverse stock split contemplated by
Section 4.5 of the Buyer Disclosure Schedule (the "Reverse Stock Split") prior
to or simultaneously with the Closing, (a)(i) the number of Plan Shares, (ii)
the number of Rights Shares, and (iii) the number of shares of Buyer Common
Stock issuable upon exercise of Stockholder Rights or Buyer Participation
Warrants issued pursuant to the Buyer Distribution will be adjusted, in each
case, to a number equal to the product of (x) the number provided therefor
herein and (y) the Adjustment Fraction and (b) the Subscription Price will be
adjusted to a price equal to the product of (x) $2.00 and (y) the Inverse
Adjustment Fraction. For purposes of this Section 8.18, the term "Adjustment
Fraction" means a fraction, the numerator of which is the total number of
shares of Buyer Common Stock issued and outstanding immediately following the
effectiveness of the Reverse Stock Split and the denominator of which is the
total number of shares of Buyer Common Stock issued and outstanding
immediately prior to the effectiveness of the Reverse Stock Split (provided,
however, that if the Reverse Stock Split occurs simultaneously with the
Closing, shares of Buyer Common Stock issued in connection with the Closing
will not be treated as outstanding for purposes of determining the numerator
or denominator of such fraction), and the term "Inverse Adjustment Fraction"
means a fraction that is the inverse of the Adjustment Fraction.
IN WITNESS WHEREOF, the Parties have executed this Agreement and Plan of
Merger as of the date first above written.
ARCH COMMUNICATIONS GROUP, INC.
/s/ J. Roy Pottle
By: _________________________________
Name: J. Roy Pottle
Title: Executive Vice President
and Chief Financial Officer
FARM TEAM CORP.
/s/ J. Roy Pottle
By: _________________________________
Name: J. Roy Pottle
Title: Executive Vice President
and Chief Financial Officer
53
<PAGE>
SUBJECT TO ENTRY OF THE PROVISION
ORDER AS TO THE PROVISIONS HEREOF
COVERED THEREBY AND TO THE RECEIPT
OF THE CONFIRMATION ORDER FROM THE
BANKRUPTCY COURT WITH RESPECT TO THE
AMENDED PLAN AS DESCRIBED HEREIN:
MOBILEMEDIA CORPORATION
/s/ Joseph A. Bondi
By: _________________________________
Name: Joseph A. Bondi
Title: Chairman--Restructuring
MOBILEMEDIA COMMUNICATIONS, INC.
/s/ Joseph A. Bondi
By: _________________________________
Name: Joseph A. Bondi
Title: Chairman--Restructuring
54
<PAGE>
September 1, 1998
Board of Directors
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, Massachusetts 01581
Dear Sirs:
We understand that (i) Arch Communications Group, Inc. ("Arch"), MobileMedia
Corporation ("Parent") and Parent's wholly owned subsidiary, MobileMedia
Communications, Inc. ("MobileMedia"), have entered into an Agreement and Plan
of Merger dated as of August 18, 1998 (the "Original Merger Agreement")
pursuant to which MobileMedia will be merged with and into a newly-formed,
wholly-owned subsidiary of Arch, immediately following Parent's contribution
of all of its assets to MobileMedia and (ii) the parties to the Original
Merger Agreement intend to modify the Original Merger Agreement in certain
respects (as so proposed to be modified, the "Merger Agreement"). MobileMedia
and its subsidiaries are currently operating as debtors-in-possession under
Chapter 11 of the United States Bankruptcy Code and the proposed merger
pursuant to the Merger Agreement (the "Merger") constitutes the basis of
MobileMedia's joint plan of reorganization. You have provided us a copy of (i)
the Original Merger Agreement, together with the exhibits and schedules
thereto, (ii) the First Amended Joint Plan of Reorganization (the "Plan"),
(iii) a summary of the proposed modifications to the Original Merger Agreement
and the Plan and (iv) the proxy statement, in draft form, filed by Arch with
the Securities and Exchange Commission on August 21, 1998 (the "Proxy
Statement").
In connection with the Merger and pursuant to the Plan as proposed to be
modified (as so proposed to be modified, the "Amended Plan"), so long as the
"Arch Market Price" (as defined below), is greater than or equal to $6.25 per
share: (i) MobileMedia's senior secured creditors will receive approximately
$649 million in cash ($170 million of which will be raised from the sale of
certain transmission tower assets by MobileMedia and $217 million of which
will be raised through a distribution (the "Rights Offering") to MobileMedia
unsecured creditors of rights (the "Rights") to acquire shares of common
stock, par value $.01 per share, of Arch ("Arch Common Stock"), at an exercise
price between $5.00 and $8.50 per share (or $217 million in the aggregate)),
(ii) Arch will pay up to approximately $34 million, in the aggregate, of
MobileMedia non-ordinary course administrative claims and pre-petition
priority claims, (iii) Arch will repay up to $30 million of debtor-in-
possession financing (notwithstanding any additional amounts spent by
MobileMedia on N-PCS capital expenditures) outstanding as of the effective
date of the Merger, (iv) Arch will issue (directly and pursuant to the
exercise of the Rights) an aggregate of between approximately 48.8 million and
57.7 million shares of Arch Common Stock to MobileMedia unsecured creditors
(representing between approximately 66% and 69%, respectively, of the "Pro
Forma Shares" (as defined below)), (v) Arch will distribute to MobileMedia
unsecured creditors (including certain creditors (the "Standby Purchasers")
that have committed to purchase shares of Arch Common Stock to the extent any
of the Rights are not otherwise exercised) warrants ("$8.19 Warrants") to
purchase, at an exercise price of $8.19 per share, Arch Common Stock
representing approximately 5% of the "Fully-Diluted Shares" (as defined below)
and (vi) Arch will distribute, to the holders of Arch Common Stock and Series
C Convertible Preferred Stock, par value $.01 per share, of Arch ("Arch
Convertible Preferred Stock") outstanding immediately prior to the
consummation of the Merger, $8.19 Warrants to purchase shares of Arch Common
Stock representing approximately 7% of the Fully-Diluted Shares.
If the Arch Market Price is less than $6.25 per share, (i) MobileMedia's
senior secured creditors will receive approximately $649 million in cash ($170
million of which will be raised from the sale of certain transmission tower
assets by MobileMedia and $217 million of which will be raised through the
Rights Offering (except that the Rights will be exercisable at an exercise
price of between $2.00 and $4.99 per share), (ii) Arch will pay up to
approximately $34 million, in the aggregate, of MobileMedia non-ordinary
course administrative claims and pre-petition priority claims, (iii) Arch will
repay up to $30 million of debtor-in-possession financing (notwithstanding any
additional amounts spent by MobileMedia on N-PCS capital expenditures)
outstanding as of the effective date of the Merger, (iv) Arch will issue
(directly and pursuant to the exercise of the Rights) an
B-1
<PAGE>
aggregate of between approximately 57.8 million and 122.8 million shares of
Arch Common Stock to MobileMedia unsecured creditors (representing between
approximately 69.3% and 82.7%, respectively, of the Pro Forma Shares), (v)
Arch will issue to the Standby Purchasers warrants ("Arch Participation
Warrants") to purchase, at an exercise price estimated to be between $3.25 and
$8.11 per share, shares of Arch Common Stock representing approximately 2.5%
of the Fully-Diluted Shares, and (vi) Arch will distribute to the holders of
Arch Common Stock and Arch Convertible Preferred Stock outstanding immediately
prior to the consummation of the Merger rights (the "Arch Stockholder Rights")
to acquire, at an exercise price of between $2.00 and $4.99 per share, shares
of Arch Common Stock which, if such Arch Stockholder Rights are fully
exercised, would result in the holders of Arch Common Stock and Arch
Convertible Preferred Stock outstanding immediately prior to the Merger
holding shares of Arch Common Stock representing not less than approximately
32.175% of the Fully-Diluted Shares. To the extent the Arch Stockholder Rights
are not exercised by any Arch Stockholder, such Arch Stockholder will receive
Arch Participation Warrants, at an exercise price estimated to be between
$3.25 and $8.11 per share, for an equivalent number of shares of Arch Common
Stock in lieu of the Arch Common Stock to be received from the exercise of
such Arch Stockholder Rights.
As used herein, "Arch Market Price" means the greater of (i) the average
closing price of Arch Common Stock on the Nasdaq National Market for four of
the trading days during the 20 consecutive trading days ending September 22,
1998 (such four days to be randomly selected pursuant to a procedure to be set
forth in the Merger Agreement) and (ii) $6.25; provided, that if the average
closing price of Arch Common Stock for three of the trading days during the 15
consecutive trading days commencing on the first day following the
Confirmation Date (as defined in the Plan) (such three days to be randomly
selected pursuant to a procedure to be set forth in the Merger Agreement) (the
"Subsequent Arch Market Price") is less than $6.25, the Arch Market Price will
be the Subsequent Arch Market Price; provided, further, that in no event may
the Arch Market Price be less than $2.50 or more than $10.63. In addition, as
used herein, (i) "Pro Forma Shares" means the number of shares of Arch Common
Stock to be outstanding after giving effect to the consummation of the Merger
and assuming the issuance of all shares of Arch Common Stock issuable pursuant
to the Rights Offering and the conversion of all outstanding shares of the
Arch Convertible Preferred Stock (but without giving effect to the issuance of
Arch Common Stock upon the exercise of warrants or Arch Stockholder Rights to
be issued in connection with the Merger) and (ii) "Fully Diluted Shares" means
the Pro Forma Shares plus (x) the number of shares of Arch Common Stock (if
any) issued to Arch Stockholders pursuant to the exercise of the Arch
Stockholder Rights and (y) the number of shares of Arch Common Stock issuable
upon the exercise of all warrants to be issued in connection with the Merger.
Existing stockholders of Parent will receive no distribution in connection
with the Merger or the Amended Plan.
You have asked us to render our opinion as to whether (i) the consideration
to be paid by Arch to the claimholders of MobileMedia in connection with the
Merger (and pursuant to the Amended Plan) and (ii) the issuance of the $8.19
Warrants or the Arch Stockholder Rights (or Arch Participation Warrants in
lieu of unexercised Arch Stockholder Rights), as the case may be, to holders
of Arch Common Stock and Arch Convertible Preferred Stock, taken together as a
whole, is fair, from a financial point of view, to Arch and its stockholders.
In the course of our analyses for rendering this opinion, we have:
1. reviewed the Original Merger Agreement, together with the exhibits and
schedules thereto;
2. reviewed the Plan;
3. reviewed the Proxy Statement in draft form;
4. reviewed a summary of the proposed modifications to the Original
Merger Agreement and the Plan;
5. reviewed Parent's Annual Reports to Stockholders and Annual Reports on
Form 10-K for the fiscal years ended December 31, 1994 and 1995, its
audited financial statements for the fiscal years ended
B-2
<PAGE>
December 31, 1996 and 1997, its unaudited financial statements for the six
months ended June 30, 1998 and its Quarterly Report on Form 10-Q for the
period ended September 30, 1997;
6. reviewed MobileMedia's Monthly Operating Reports as filed with the
United States Bankruptcy Court for the District of Delaware since its
declaration of bankruptcy in January 1997, and its filings on Form 8-K
during the interim;
7. reviewed Arch's Annual Reports to Stockholders and Annual Reports on
Form 10-K for the fiscal years ended December 31, 1995 through 1997 and its
Quarterly Reports on Form 10-Q for the periods ended March 31, 1998 and
June 30, 1998;
8. reviewed certain operating and financial information provided to us by
the senior managements of Arch and MobileMedia relating to Arch's and
MobileMedia's respective businesses and prospects, including projections of
each company for the years ended 1998 through 2002 (and Arch management's
adjustments thereto in the case of MobileMedia's projections)
(collectively, the "Projections") and certain other forward-looking
information;
9. reviewed certain estimates of anticipated cost savings, capital
expenditure avoidance and other transaction benefits (collectively, the
"Merger Benefits") expected to result from the Merger, jointly prepared and
provided to us by the senior managements of Arch and MobileMedia;
10. reviewed certain estimates of anticipated MobileMedia non-ordinary
course administrative claims and other pre-petition priority claims, and
certain liabilities to be assumed pursuant to the Amended Plan (the "Claims
Estimates");
11. met separately and/or jointly with certain members of the senior
managements of Arch and MobileMedia to discuss (i) the current paging
industry landscape and competitive dynamics related thereto, (ii) each
company's operations, historical financial statements, future prospects and
financial condition, (iii) their views of the business, operational and
financial rationale for, and expected strategic benefits and other
implications of, the Merger and (iv) the Projections and the Merger
Benefits;
12. reviewed the historical stock prices, trading volumes and valuation
multiples for the Arch Common Stock;
13. reviewed and analyzed the pro forma financial impacts of the Merger
on Arch;
14. reviewed publicly available financial data, stock market performance
data and valuation multiples for companies which we deemed generally
comparable to Arch and MobileMedia or otherwise relevant to our inquiry;
15. reviewed the financial terms, to the extent publicly available, of
recent mergers and acquisitions which we deemed generally comparable to the
Merger; and
16. conducted such other studies, analyses, inquiries and investigations
as we deemed appropriate.
In preparing our opinion, we have assumed and relied upon, without
independent verification, the accuracy and completeness of all information
supplied or otherwise made available to us, discussed with or reviewed by or
for us, or publicly available. With respect to the Projections, the Merger
Benefits and the Claims Estimates, we have assumed that they have been
reasonably prepared on bases reflecting the best currently available estimates
and judgments of the senior management of Arch as to the anticipated future
performance of Arch and MobileMedia and as to the anticipated Merger Benefits
achievable within the time frames forecast therein. We have not assumed any
responsibility for the independent verification of such information, or of the
Projections or the Merger Benefits, nor have we undertaken an independent
evaluation or appraisal of any of the assets or liabilities of Arch or
MobileMedia or been furnished with any such evaluation or appraisal. In
addition, we have not assumed any obligation to conduct, nor have we
conducted, any physical inspection of the properties or facilities of Arch or
MobileMedia. We have further relied upon the assurances of the senior
managements of Arch and MobileMedia that they are unaware of any facts that
would make the information, Projections or Merger Benefits provided to us
incomplete or misleading in any material respect. We have also assumed that
the Merger will be consummated in accordance with the terms described in the
Original Merger Agreement and the
B-3
<PAGE>
Plan (each as amended to reflect the proposed modifications), without the
waiver of any material condition and with all necessary material consents and
approvals having been obtained without any limitations, restrictions,
conditions, amendments or modifications that collectively would have a
material effect on Arch, MobileMedia or the expected benefits of the Merger to
Arch.
We are not expressing any opinion as to what the value of Arch Common Stock
actually will be at the time of the Merger or the price or range of prices at
which Arch Common Stock may trade subsequent to the announcement or
consummation of the Merger. Such trading price or range of prices of Arch
Common Stock may be impacted by, among other things, prevailing interest
rates, conditions in the financial markets, the anticipated initial holdings
of Arch Common Stock by former MobileMedia unsecured creditors, some of whom
may prefer to liquidate their investment rather than hold it on a long-term
basis, the potential concentration of shares of Arch Common Stock that may be
held by the standby purchasers in the Rights Offering, arbitrage activity and
other factors that generally influence the prices of securities. Our opinion
is necessarily based on economic, market and other conditions, and the
information made available to us, as of the date hereof, and we undertake no
obligation to update our opinion to reflect any developments occurring after
the date hereof.
We have acted as financial advisor to Arch in connection with the Original
Merger Agreement, the Merger and the Plan (and the proposed modifications to
the Original Merger Agreement and the Plan) and will receive a fee for such
services, payment of a significant portion of which is contingent upon the
consummation of the Merger. In addition, we will be receiving fees for our
services on Arch's behalf in connection with the financing for the Merger. We
have also previously rendered certain investment banking and financial
advisory services to Arch for which we received customary compensation. In the
ordinary course of our business, we may actively trade the debt and equity
securities of Arch and/or MobileMedia for our own account and for the accounts
of our customers and, accordingly, may at any time hold a long or short
position in such securities.
It is understood that this letter is intended for the benefit and use of the
Board of Directors of Arch. Our opinion does not address the merits of the
underlying decision by Arch to engage in the Merger and does not constitute a
recommendation to any holder of Arch Common Stock as to how to vote in
connection with the Merger or the issuance of Arch Common Stock to effect the
Merger, or as to any related financing transaction. This letter is not to be
used for any other purpose, or reproduced, disseminated, quoted or referred to
at any time, in whole or in part, without our prior written consent; provided,
however, that this letter may be included in its entirety in the Proxy
Statement or Prospectus to be distributed to the holders of Arch Common Stock
in connection with the Merger.
Based upon and subject to the foregoing, it is our opinion that, as of the
date hereof, (i) the consideration to be paid by Arch to the claimholders of
MobileMedia in connection with the Merger (and pursuant to the Amended Plan)
and (ii) the issuance of the $8.19 Warrants or the Arch Stockholder Rights (or
Arch Participation Warrants in lieu of unexercised Arch Stockholder Rights),
as the case may be, to holders of Arch Common Stock and Arch Convertible
Preferred Stock, taken together as a whole, is fair, from a financial point of
view, to Arch and its stockholders.
Very truly yours,
Bear Stearns & Co. Inc.
/s/ H.C. Charles Diao
By: _________________________________
Senior Managing Director
B-4
<PAGE>
ANNEX C
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
Chapter 11
MobileMedia Communications, Case No. 97-174 (PJW)
Inc., et al.,
(Jointly Administered)
Debtors.
DEBTORS' THIRD AMENDED JOINT PLAN OF REORGANIZATION
DATED: DECEMBER 1, 1998
J. Ronald Trost James L. Patton, Jr. (No. 2202)
James D. Johnson Joel A. Waite (No. 2925)
Shelley C. Chapman YOUNG CONAWAY STARGATT
Lee M. Stein & TAYLOR, LLP
SIDLEY & AUSTIN P.O. Box 391
875 Third Avenue Wilmington, Delaware 19899
New York, New York 10022 (302) 571-6600
(212) 906-2000
CO-COUNSEL TO DEBTORS AND
DEBTORS-IN-POSSESSION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
INTRODUCTION.............................................................. 1
ARTICLE I
DEFINITIONS; INTERPRETATION.............................................. 1
1.1 Definitions..................................................... 1
1.2 Interpretation.................................................. 10
1.3 Computation of Time............................................. 10
ARTICLE II
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS..................... 10
2.1 Administrative Claims........................................... 10
2.2 Priority Tax Claims............................................. 11
2.3 Class 1 Claims (Priority Claims)................................ 11
2.4 Class 2 Claims (Miscellaneous Secured Claims)................... 11
2.5 Class 3 Claims (Customer Refund Claims)......................... 12
Class 4 Claims (Claims arising under or related to the 1995
2.6 Credit Agreement)............................................... 12
Class 5 Claims (Claims arising under or related to the Dial Page
2.7 Notes).......................................................... 12
2.8 Class 6 Claims (Non-Priority Unsecured Claims).................. 13
2.9 Class 7 Claims (Note Litigation Claims)......................... 14
2.10 Class 8 Claims and Interests (Common Stock Claims and Interests
and Subordinated Indemnification Obligation Claims)............. 14
2.11 Class 9 Claims and Interests (Subsidiary Claims and Interests).. 14
ARTICLE III
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES.................... 15
3.1 Rejection....................................................... 15
3.2 Assumption...................................................... 15
3.3 Post-Petition Contracts and Leases.............................. 16
ARTICLE IV
IMPLEMENTATION OF PLAN................................................... 16
4.1 Actions Occurring Prior to the Effective Date................... 16
4.2 Actions Occurring on the Effective Date......................... 17
4.3 Distributions Occurring On and After the Effective Date......... 19
4.4 Procedure For Determination of Claims and Interests............. 22
4.5 Issuance of Arch Capital Shares................................. 23
4.6 Issuance of Warrants............................................ 23
4.7 Issuance of Rights.............................................. 23
4.8 Exemption from Securities Laws.................................. 23
4.9 Registration Rights Agreement................................... 24
4.10 Effectuating Documents; Further Transactions; Exemption From
Certain Transfer Taxes.......................................... 24
4.11 Release of Security Interests................................... 24
ARTICLE V
CONDITIONS TO EFFECTIVE DATE............................................. 24
5.1 Conditions to Occurrence of Effective Date...................... 24
5.2 Effect of Non-occurrence of Conditions to the Effective Date.... 24
5.3 Non-consensual Confirmation..................................... 25
</TABLE>
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<TABLE>
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ARTICLE VI
DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS............. 25
6.1 Discharge of Claims and Termination of Interests............... 25
6.2 Injunctions.................................................... 25
6.3 Termination of Subordination Rights and Settlement of Related
Claims and Controversies....................................... 26
ARTICLE VII
MISCELLANEOUS........................................................... 26
7.1 Retention of Jurisdiction...................................... 26
7.2 Retention and Enforcement Of Causes Of Action.................. 27
7.3 Limitation of Liability........................................ 27
7.4 Releases....................................................... 28
7.5 Indemnification Obligations; Directors' and Officers' Liability
Insurance...................................................... 29
7.6 Terms Binding.................................................. 30
7.7 Additional Terms of Securities and Other Instruments........... 30
7.8 Post-Consummation Effect of Evidences of Claims or Interests... 30
7.9 Payment Dates.................................................. 30
7.10 Successors and Assigns......................................... 30
7.11 Inconsistencies................................................ 30
7.12 Compliance with Applicable Law................................. 30
7.13 Governing Law.................................................. 30
7.14 Severability................................................... 30
7.15 Incorporation by Reference..................................... 31
</TABLE>
<TABLE>
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Exhibit A Registration Rights Agreement (10% Holders)
Exhibits B-1 through B-6 Standby Purchase Commitments
Schedule 1 Assumed Employment and Benefit Agreements
</TABLE>
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MobileMedia Corporation, a Delaware corporation ("MobileMedia"), MobileMedia
Communications, Inc., a Delaware corporation ("Communications"), MobileMedia
Communications, Inc. (California), a California corporation, MobileMedia DP
Properties, Inc., a Delaware corporation, MobileMedia PCS, Inc., a Delaware
corporation, Dial Page Southeast, Inc., a Delaware corporation, Radio Call
Company of Va., Inc., a Virginia corporation, MobileMedia Paging, Inc., a
Delaware corporation, Mobile Communications Corporation of America, a
Mississippi corporation, MobileComm of the Southeast, Inc., a Delaware
corporation, MobileComm of the Northeast, Inc., a Delaware corporation,
MobileComm Nationwide Operations, Inc., a Delaware corporation, MobileComm of
Tennessee, Inc., a Tennessee corporation, MobileComm of the Southeast Private
Carrier Operations, Inc., a Georgia corporation, MobileComm of the Southwest,
Inc., a Texas corporation, MobileComm of Florida, Inc., a Florida corporation,
MobileComm of the Midsouth, Inc., a Missouri corporation, FWS Radio, Inc., a
Texas corporation, and MobileComm of the West, Inc., a California corporation,
each a debtor and debtor-in-possession herein (collectively, the "Debtors"),
propose the following Third Amended Joint Plan of Reorganization (the "Plan").
INTRODUCTION
This Plan encompasses a reorganization of the Debtors pursuant to which
Communications will merge with and into Farm Team Corp., a Delaware
corporation ("Merger Subsidiary") and a subsidiary of Arch Communications
Group, Inc. ("Arch"), with Merger Subsidiary being the surviving company. The
Debtors' creditors will receive cash or equity securities of Arch. There will
be no recovery for the Debtors' equity security holders.
Reference is made to the Disclosure Statement accompanying this Plan,
including the exhibits thereto, for a discussion of the Debtors' and Arch's
history, business, results of operations and properties, and for a summary and
analysis of this Plan. All creditors are encouraged to consult the Disclosure
Statement and to read this Plan carefully before voting to accept or reject
this Plan.
NO SOLICITATION MATERIALS, OTHER THAN THE DISCLOSURE STATEMENT AND RELATED
MATERIALS TRANSMITTED THEREWITH AND APPROVED BY THE BANKRUPTCY COURT, HAVE
BEEN AUTHORIZED BY THE BANKRUPTCY COURT FOR USE IN SOLICITING ACCEPTANCES OR
REJECTIONS OF THIS PLAN.
ARTICLE I
Definitions; Interpretation
1.1 Definitions.
In addition to such other terms as are defined in other Sections of this
Plan, the following terms (which appear in this Plan as capitalized terms)
shall have the meanings set forth below. A term used in this Plan and not
defined in this Plan but that is defined in the Code has the meaning set forth
in the Code.
"9 3/8% Note Indenture" means the Indenture dated as of November 13, 1995,
between Communications, as Issuer, and State Street Bank and Trust Company, as
Trustee.
"9 3/8% Notes" means the Senior Subordinated Notes due November 1, 2007,
issued pursuant to the 9 3/8% Note Indenture.
"10 1/2% Note Indenture" means the Indenture dated as of December 1, 1993,
between Communications, as Issuer, and First Trust USA (as successor to
BankAmerica National Trust Company), as Trustee, as amended.
"10 1/2% Notes" means the 10 1/2% Senior Subordinated Deferred Coupon Notes
due December 1, 2003, issued pursuant to the 10 1/2% Note Indenture.
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"1995 Credit Agreement" means the Credit Agreement dated as of December 4,
1995, as amended, among Communications, the Pre-Petition Lenders and the Pre-
Petition Agent.
"Administrative Claim" means a Claim to the extent that it is of the kind
described in section 503(b) of the Code and is entitled to priority under
section 507(a)(1) of the Code.
"Allowed" means as to any Claim (whether an Administrative Claim, Priority
Claim, Priority Tax Claim, Secured Claim or Unsecured Claim), the extent to
which such Claim:
(a) (i) was timely filed or listed in the Schedules and not listed as
disputed, contingent or unliquidated as to amount; and
(ii) the Debtors, the Reorganized Debtors or any other party in
interest entitled to do so has not and does not file an objection to such
Claim within the time period set forth for objecting in Section 4.4;
(b) is allowed by a Final Order of the Bankruptcy Court; or
(c) is allowed by this Plan.
"Arch Capital Shares" means, collectively, the Arch Common Shares and the
Arch Class B Common Shares.
"Arch Class B Common Shares" means the shares of Class B Common Stock of
Arch, par value $0.01 per share, to be authorized and issued as and when
contemplated by the Merger Agreement.
"Arch Common Shares" means the shares of Common Stock of Arch, par value
$0.01 per share, which are issued and outstanding plus additional shares which
will be authorized and issued as and when contemplated by the Merger
Agreement.
"Arch Participation Warrants" means warrants for the purchase of Arch Common
Shares, which warrants will be issued pursuant to a Warrant Agreement
governing their issuance and exercise that will be in the form set forth in
Exhibit B-1 to the Merger Agreement.
"Arch Series C Convertible Preferred Shares" means the shares of Series C
Convertible Preferred Stock of Arch, par value $0.01 per share.
"Arch Stockholder Rights" means non-transferable rights issued by Arch
(except that, at Arch's election, the rights will transfer with the underlying
shares in respect of which the rights are distributed) for the purchase of
Arch Common Shares.
"Arch Stockholder Rights Offering" means the issuance of Arch Stockholder
Rights to the holders of Arch Common Stock on a date to be determined by the
Board of Directors of Arch, as more fully described in Schedule IV to the
Merger Agreement.
"Arch Stockholder Rights Offering Commencement Date" has the meaning set
forth in Schedule IV to the Merger Agreement.
"Ballot" means the ballot for voting to accept or reject this Plan
distributed by the Debtors to all holders of impaired Claims entitled to vote
on this Plan.
"Bankruptcy Court" means the United States Bankruptcy Court for the District
of Delaware in which the Cases were filed on January 30, 1997, or any other
court with jurisdiction over the Cases.
"Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as
amended from time to time to the extent applicable to the Cases.
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"Benefit Plan Indemnification Obligations" means Indemnification Obligations
with respect to any officer or employee serving as a fiduciary of any employee
benefit plan or program of the Debtors, pursuant to charter, by law, contract
or applicable state law for any actions taken or not taken in the discharge of
such officer's or employee's duties as a fiduciary of such employee benefit
plans or programs.
"Business Day" means any day other than a Saturday, Sunday or day on which
commercial banks in the city of New York, New York or the States of New Jersey
or Delaware are authorized or required to close.
"Capped Administrative Claims" means the Debtors' good faith estimate of the
sum of (i) Priority Tax Claims, (ii) Administrative Claims for (x) bonuses
payable to employees and professionals on or as a result of the Effective
Date, (y) amounts necessary to cure any defaults in executory contracts or
unexpired leases assumed pursuant to this Plan as required by section 365(b)
of the Code and (z) any accrued and unpaid fees and expenses of professionals
retained by the Debtors or the Committee pursuant to orders of the Bankruptcy
Court, and (iii) Claims for (x) the Allowed Class 4 Claims described in
Section 2.6(B)(ii), (iii) and (iv), (y) the Allowed Class 5 Claims described
in Section 2.7(B), and (z) Allowed Class 6 Claims of the indenture trustees
under the Subordinated Indentures described in Section 2.8(C)(3), in each case
(other than those Claims in clause (iii)(z) hereof which shall be payable
until such professionals no longer provide services to their respective
constituencies on account of the Cases), accrued and unpaid or payable as of
the Effective Date, which estimate shall be in reasonable detail (which in the
case of professional fees, shall be in substantially the same form as would be
submitted to the Bankruptcy Court) and shall be delivered to Arch (with a copy
to the Committee) twenty days prior to the Effective Date. If no objection is
made by Arch to the Debtors' estimate within ten days after receipt thereof,
the estimate shall be deemed to be the amount of Capped Administrative Claims
for purposes of Section 2.1(D). If Arch delivers to the Debtors (with a copy
to the Committee) a written objection to the Debtors' estimate within ten days
after receipt of such estimate, and the Debtors and Arch are unable to resolve
such objection, it shall be submitted to the Bankruptcy Court to be determined
on or as soon as practicable after the Effective Date.
"Cash Equivalent" means, with respect to any Right, an amount equal to the
value of such Right as determined based on the actual proceeds received from
the sale of Rights from the Rights Reserve pursuant to Section 4.1(B)(5) (or,
if the Rights Reserve is then fully depleted, the fair value thereof as of the
time such sale would have occurred based on the market price for such Right
or, if no such price is available, as determined by the Debtors, Arch and the
Committee in good faith or determined by the Bankruptcy Court if no agreement
can be reached).
"Cases" means the reorganization proceedings of the Debtors under chapter 11
of the Code, jointly administered as Case No. 97-174 (PJW).
"Causes of Action" means all claims and causes of action now owned or
hereafter acquired by the Debtors, whether arising under any contract or under
the Code or other federal or state law, including, without limitation, any
causes of action arising under sections 544, 545, 547, 548, 549, 550, 551,
553(b) or other sections of the Code.
"Claim" means "claim" as defined in section 101(5) of the Code, as
supplemented by section 102(2) of the Code, and shall, in each case, mean a
Claim against any Debtor (whether or not so designated).
"Class" means each class of Claims or Claims and Interests created under
this Plan.
"Class 6 Adjusted Pro Rata Share" means, as to any Allowed Class 6 Claim, as
of the date that is five Business Days prior to the Final Distribution Date, a
fraction (i) the numerator of which is the amount of such Allowed Class 6
Claim and (ii) the denominator of which is the aggregate amount of all Allowed
Class 6 Claims as of such date.
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"Class 6 Pro Rata Share" means, as to any Allowed Claim in Class 6 on the
Effective Date or such later date (prior to the Final Distribution Date) as
such Claim becomes Allowed, a fraction (i) the numerator of which is the
amount of such Allowed Claim and (ii) the denominator of which is the sum of
(x) the Effective Date Disputed Claims, (y) the Effective Date Allowed Claims
and (z) an estimate of the aggregate amount of Claims arising from the
rejection of executory contracts and unexpired leases pursuant to Section 3.1
that are anticipated to become Allowed Claims, such estimate to be mutually
agreed upon by the Debtors, the Committee and Arch in good faith or determined
by the Bankruptcy Court if no such agreement can be reached.
"Code" means the United States Bankruptcy Code, 11 U.S.C. (S)(S) 101 et
seq., as amended from time to time to the extent applicable to the Cases.
"Committee" means the Official Committee of Unsecured Creditors appointed by
the United States Trustee for the District of Delaware on February 10, 1997.
"Common Stock" means, collectively, (i) the Class A common stock of
MobileMedia, par value $.001, issued and outstanding immediately prior to the
Effective Date, (ii) the Class B common stock of MobileMedia, par value $.001,
issued and outstanding immediately prior to the Effective Date and (iii) all
options, warrants and other rights to purchase the Class A common stock or the
Class B common stock of MobileMedia.
"Common Stock Claim" means any Claim with respect to the Common Stock of the
kind described in section 510(b) of the Code, including, without limitation,
any such Claim asserted in or by the parties to the Securities Actions and any
Claim by an officer, director or underwriter for contribution, reimbursement
or indemnification related thereto.
"Confirmation" means "confirmation" as used in section 1129 of the Code.
"Confirmation Date" means the date on which the Confirmation Order is
entered by the Bankruptcy Court.
"Confirmation Hearing" means the hearing at which the Bankruptcy Court
considers Confirmation of this Plan.
"Confirmation Order" means an order of the Bankruptcy Court confirming this
Plan, which order shall be reasonably satisfactory to Arch and, as to the
provisions relating to the treatment of Allowed Class 4 Claims, the Pre-
Petition Agent.
"Creditor" means "creditor" as defined in section 101(10) of the Code and
shall mean a creditor of any Debtor.
"Creditor Stock Pool" means 14,344,969 newly-issued Arch Common Shares, as
such number of shares constituting the Creditor Stock Pool may be adjusted
pursuant to Section 2.1(D) and Section 4.1(B)(6).
"Customer Refund Claim" means a Claim by a customer or subscriber of any of
the Debtors for refund of amounts improperly paid or billed, or for the return
of a deposit.
"Delaware Subsidiary Co." means Mobile Communications Corporation of
America, a Delaware corporation and wholly owned subsidiary of Communications.
"Dial Page Indenture" means the Indenture dated as of February 1, 1993,
between Dial Page, Inc., a Delaware corporation, as Issuer, and the Dial Page
Indenture Trustee, as amended.
"Dial Page Indenture Trustee" means Norwest Bank Minnesota, N.A. (as
successor to First Union Bank of South Carolina), as Trustee under the Dial
Page Indenture.
"Dial Page Notes" means the 12 1/4% Senior Notes due 2000, issued pursuant
to the Dial Page Indenture.
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"DIP Agent" means The Chase Manhattan Bank, in its capacity as agent for the
DIP Lenders under the DIP Credit Agreement.
"DIP Approval Orders" means, collectively, (i) the Final Order (I)
Authorizing (A) Secured Post-Petition Financing On A Super Priority Basis
Pursuant To 11 U.S.C. (S) 364, (B) Use Of Cash Collateral Pursuant to 11
U.S.C. (S) 363 and (C) Grant of Adequate Protection Pursuant To 11 U.S.C.
(S)(S) 363 And 364, dated February 19, 1997, (ii) Order (I) Authorizing
Extension of (A) Secured Post-Petition Financing On A Super Priority Basis
Pursuant To 11 U.S.C. (S) 364, (B) Use Of Cash Collateral Pursuant To 11
U.S.C. (S) 363 And (C) Grant Of Adequate Protection Pursuant To 11 U.S.C.
(S)(S) 363 And 364 And (II) Scheduling A Final Hearing Pursuant To Bankruptcy
Rule 4001(c), dated January 27, 1998 and (iii) Order (I) Authorizing Extension
of (A) Secured Post-Petition Financing On A Super Priority Basis Pursuant To
11 U.S.C. (S) 364, (B) Use Of Cash Collateral Pursuant To 11 U.S.C. (S) 363
And (C) Grant Of Adequate Protection Pursuant To 11 U.S.C. (S)(S) 363 And 364
And (II) Scheduling A Final Hearing Pursuant To Bankruptcy Rule 4001(c), dated
July 28, 1998.
"DIP Credit Agreement" means the Revolving Credit and Guarantee Agreement
dated as of January 30, 1997, as amended, among Communications, as Borrower,
MobileMedia, as Parent and Guarantor, each of the direct and indirect
subsidiaries of Communications designated as Guarantor in Schedule 3.5
thereto, as Guarantors, the DIP Agent and the DIP Lenders.
"DIP Lenders" means those financial institutions from time to time party to
the DIP Credit Agreement as lenders.
"Director Indemnification Obligations" means Indemnification Obligations
with respect to any present or former director of any of the Debtors.
"Disclosure Statement" means the Disclosure Statement respecting this Plan
approved by order of the Bankruptcy Court, and all supplements and exhibits
thereto.
"Disputed Claim" means a Claim against any of the Debtors to the extent that
such Claim is not Allowed.
"Effective Date" means the date on which this Plan becomes effective, which
date shall be ten Business Days after all the conditions to the Effective Date
set forth in Section 5.1 have first been satisfied or waived, or such earlier
date (but not less than seven Business Days after such conditions have first
been satisfied or waived) as the Debtors, Arch, the Pre-Petition Agent, the
DIP Agent and the Committee shall agree.
"Effective Date Allowed Claims" means those Class 6 Claims that have been
Allowed by order of the Bankruptcy Court prior to the Effective Date or that
are Allowed pursuant to this Plan, as set forth in a schedule delivered by the
Debtors to the Exchange Agent and Arch two Business Days prior to the
Effective Date, which schedule, absent manifest error, shall be conclusive for
the purposes of calculating Class 6 Pro Rata Share.
"Effective Date Disputed Claims" means, on and as of the Effective Date, any
Class 6 Claim that is a Disputed Claim on and as of such date, in the full
amount set forth in any timely filed proof of claim or listed by the Debtors
in the Schedules, as set forth in a schedule delivered by the Debtors to the
Exchange Agent and Arch two Business Days prior to the Effective Date, which
schedule, absent manifest error, shall be conclusive for purposes of
calculating Class 6 Pro Rata Share.
"Estate Representative" has the meaning given such term in Section
4.2(C)(5).
"Exchange Agent" means a bank trust company or other entity reasonably
satisfactory to MobileMedia and the Committee, appointed by Arch to act as the
exchange agent for making distributions to the holders of Allowed Class 6
Claims.
"Excluded Indemnification Obligations" means Indemnification Obligations
with respect to (i) any present or former officer of the Debtors considered as
of the Effective Date by the FCC to be an alleged wrongdoer for
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purposes of the FCC Proceeding, (ii) any present or former officer of the
Debtors now or hereafter named as a defendant in the Securities Actions, as to
claims arising out of the matters alleged in the Securities Actions, (iii) any
present or former officer of the Debtors named as a defendant in any action
initiated after the date hereof based upon similar factual allegations, or
alleging similar causes of action, to the Securities Actions, as to claims
arising out of the matters alleged therein, (iv) any officer or employee of
the Debtors that is not an officer or employee as of the Effective Date, (v)
present or former professionals or advisors of the Debtors, including, without
limitation, accountants, auditors, financial consultants, underwriters or
attorneys, other than Indemnification Obligations arising out of post-petition
agreements approved by the Bankruptcy Court, and (vi) any Indemnification
Obligation of the kind described in section 510(b) of the Code.
"FCC" means the Federal Communications Commission or any governmental
authority succeeding to the rights and powers thereof.
"FCC Proceeding" means the hearing in WT Docket No. 97-115, In the Matter of
MobileMedia Corporation, et al.
"Final Distribution Date" means the tenth Business Day after the day on
which no Class 6 Claim remains a Disputed Claim.
"Final Order" means, as to any court, administrative agency or other
tribunal, an order or judgment of such tribunal as entered on its docket as to
which the time to appeal or petition for certiorari has expired and as to
which no appeal or petition for certiorari is pending or, if an appeal or
petition for certiorari has been timely filed or taken, the order or judgment
of the tribunal has been affirmed (or such appeal or petition has been
dismissed as moot) by the highest court (or other tribunal having appellate
jurisdiction over the order or judgment) to which the order was appealed or
the petition for certiorari has been denied, and the time to take any further
appeal or to seek further certiorari has expired.
"Indemnification Obligations" means the obligation of any of the Debtors to
indemnify, reimburse or provide contribution to any present or former officer,
director or employee, or any present or former professionals or advisors of
the Debtors, including, without limitation, accountants, auditors, financial
consultants, underwriters or attorneys, whether pursuant to charter, by law,
contract or statute, regardless of whether the indemnification is owed in
connection with a pre-Petition Date or post-Petition occurrence.
"Interest" means all rights (including unpaid dividends) arising from any
equity security (as defined in section 101(16) of the Code) of the Debtors,
including, without limitation, the Common Stock, but excluding Common Stock
Claims.
"License Co. L.L.C." means the limited liability company formed as a wholly
owned subsidiary of MCCA that will hold the Reorganized Debtors' Licenses
after the Effective Date.
"Licenses" means the licenses and other authorizations of the Debtors to
operate their paging networks.
"Lien" means, with respect to any interest in property, any mortgage, lien,
pledge, charge, security interest, easement or encumbrance of any kind
whatsoever affecting such interest in property.
"MCCA" means Mobile Communications Corporation of America, a Mississippi
corporation.
"Merger" means the merger of Communications into Merger Subsidiary
contemplated by the Merger Agreement and Section 4.2(B).
"Merger Agreement" means the Agreement and Plan of Merger by and among Arch,
the Merger Subsidiary, MobileMedia and Communications dated as of August 18,
1998, as amended by the First Amendment thereto dated as of September 3, 1998
and the Second Amendment thereto dated as of December 1, 1998, and as the same
may be further amended from time to time.
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"Miscellaneous Secured Claim" means a Secured Claim not classified in Class
4 under this Plan.
"Non-Priority Unsecured Claim" means any Unsecured Claim not classified in
Class 3, 5, 7, 8 or 9 under this Plan.
"Note Litigation Claim" means any Claim with respect to the Notes of the
kind described in section 510(b) of the Code, including, without limitation,
any such Claim asserted in or by the parties to the Securities Actions and any
Claim by an officer, director or underwriter for contribution, reimbursement
or indemnification related thereto.
"Notes" means, collectively, the Dial Page Notes, the 9 3/8% Notes and the
10 1/2% Notes.
"Person" means any person, including, without limitation, any individual,
partnership, joint venture, corporation, company, trust, estate,
unincorporated organization and any governmental unit.
"Personal Injury Claim" means a Claim against any of the Debtors that is
unliquidated or contingent as of the Confirmation Date and is of the kind
described in 28 U.S.C. (S) 157(b)(5).
"Petition Date" means January 30, 1997, the date on which the petitions
initiating the Cases were filed with the Bankruptcy Court.
"Plan" means this Third Amended Joint Plan of Reorganization, as amended
from time to time, and all addenda, exhibits, schedules and other attachments
hereto, as the same may be amended from time to time, pursuant to this Plan or
the Code, all of which are incorporated herein by reference.
"Pre-Petition Agent" means The Chase Manhattan Bank, in its capacity as the
agent for the Pre-Petition Lenders under the 1995 Credit Agreement.
"Pre-Petition Lenders" means those financial institutions from time to time
party to the 1995 Credit Agreement as lenders.
"Priority Claim" means a Claim to the extent that it is of the kind
described in, and entitled to priority under, section 507(a)(3), (a)(4) or
(a)(6) of the Code.
"Priority Tax Claim" means a Claim to the extent that it is of the kind
described in, and entitled to priority under, section 507(a)(8) of the Code.
"Pro Rata Share" means proportionately, so that with respect to an Allowed
Claim other than an Allowed Class 6 Claim, the ratio of (i) the amount of
payments or other property distributable on account of a particular Allowed
Claim in a particular Class under this Plan to (ii) the amount of such Allowed
Claim in such Class is the same as the ratio of (a) the amount of payments or
other property distributable on account of all Allowed Claims in such Class to
(b) the amount of all Allowed Claims in such Class.
"Registration Rights Agreement" means a registration rights agreement to be
entered into pursuant to Section 4.9 between Arch and any Person entitled to
become a party to such registration rights agreement under Section 4.9, which
shall be in substantially the form attached as Exhibit A.
"Reorganized Communications" means, on and after the Effective Date, Merger
Subsidiary, the successor to Communications (as reorganized under and pursuant
to this Plan) and a wholly owned subsidiary of Arch as a result of the Merger.
"Reorganized Debtors" means, on and after the Effective Date, Reorganized
Communications and Reorganized MCCA.
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"Reorganized Debtor's Certificate of Incorporation" means, (i) as to
Reorganized Communications, the Certificate of Incorporation of Merger
Subsidiary, as amended by the Certificate of Merger relating to the Merger and
except that the name of the corporation set forth therein shall be changed to
"MobileMedia Communications, Inc.", and (ii) as to Reorganized MCCA, the
Certificate of Incorporation of Delaware Subsidiary Co.
"Reorganized Debtor's Bylaws" means, as to Reorganized Communications, the
Bylaws of Merger Subsidiary, and as to Reorganized MCCA, the Bylaws of
Delaware Subsidiary Co.
"Reorganized MCCA" means Delaware Subsidiary Co., the successor to MCCA (as
reorganized under and pursuant to this Plan) and a wholly owned subsidiary of
Reorganized Communications.
"Rights" means certificated, transferable rights issued by Arch. The
securities to be offered pursuant to the Rights will be an aggregate of
108,500,000 Arch Capital Shares. Each Right will be exercisable for one Arch
Capital Share.
"Rights Offering" means the issuance of the Rights by Arch to holders of
Allowed Class 6 Claims on the Rights Offering Commencement Date.
"Rights Offering Commencement Date" means the date on which Arch commences
the Rights Offering by mailing to holders of Allowed Class 6 Claims as of the
Rights Offering Initial Record Date certificates representing the Rights and
instructions for the exercise thereof, which date shall be as soon as
practicable after the later to occur of (i) approval by the Bankruptcy Court
of the Disclosure Statement and (ii) the effectiveness of the Registration
Statement (as defined in the Merger Agreement).
"Rights Offering Distribution Pool" means all of the Rights minus the Rights
included in the Rights Reserve.
"Rights Offering Expiration Date" means 5:00 p.m., New York City time, on
the date on which the Rights Offering terminates, which date shall be
established by Arch and Communications, on the later to occur of the
Confirmation Date and receipt of the FCC Grant (as defined in the Merger
Agreement), but shall be not less than 15 calendar days after the date on
which all the conditions to effectiveness of this Plan shall have been
satisfied or waived (other than (i) the requirement that the FCC Grant has
become a Final Order in connection with the condition set forth in Section
5.1(e) of the Merger Agreement, (ii) the requirement that the Confirmation
Order has become a Final Order in connection with the condition set forth in
Section 5.1(h) of the Merger Agreement, and (iii) such conditions that by
their nature are to be satisfied on the Effective Date).
"Rights Offering Initial Record Date" means the date that is the record date
to determine which holders of Claims are entitled to vote on this Plan.
"Rights Offering Pro Rata Share" means, as to any Allowed Class 6 Claim, a
fraction, (i) the numerator of which is the amount of such Allowed Class 6
Claim as of the date of determination and (ii) the denominator of which is the
aggregate amount of Allowed Class 6 Claims as of the Rights Offering Initial
Record Date.
"Rights Offering Supplemental Record Date" means the Confirmation Date.
"Rights Reserve" means, as of the Rights Offering Initial Record Date, a
number of Rights equal to the product of (i) the total number of Rights, and
(ii) a fraction, (A) the numerator of which is the sum of the estimated
aggregate amount of (x) Class 6 Claims that are Disputed Claims and (y) Claims
arising from the rejection of executory contracts and unexpired leases
pursuant to Section 3.1 that are anticipated to become Allowed Claims, such
estimate to be mutually agreed upon by the Debtors, the Committee and Arch, in
good faith, or determined by the Bankruptcy Court if no such agreement can be
reached, and (B) the denominator of which is the sum of the estimated
aggregate amount of (x) Class 6 Claims that are Disputed Claims, (y) Claims
arising from the rejection of executory contracts and unexpired leases
pursuant to Section 3.1 that are anticipated
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to become Allowed Claims, such estimate to be mutually agreed upon by the
Debtors, the Committee and Arch, in good faith, or determined by the
Bankruptcy Court if no such agreement can be reached, and (z) all Allowed
Class 6 Claims as of such date, as such number may be adjusted pursuant to
Section 4.1(B)(6).
"Schedules" means the joint Schedules of Assets, Liabilities and Executory
Contracts filed by the Debtors with the Clerk of the Bankruptcy Court for the
District of Delaware pursuant to Bankruptcy Rule 1007, as such schedules have
been or may be amended or supplemented by the Debtors from time to time.
"Secured Claim" means a Claim that is secured by a Lien on, or interest in,
property of any of the Debtors, or that is subject to setoff under section 553
of the Code, but only to the extent of the value of the Creditor's interest
(directly or by enforceable subrogation) in the Debtor's interest in such
property, or to the extent of the amount subject to setoff, which value shall
be determined as provided in section 506(a) of the Code or as provided in this
Plan.
"Securities Actions" means, collectively, the actions styled In re
MobileMedia Securities Litigation, No. 96-5723 (AJL) (D. N.J. 1996), Allen T.
Gilliland Trust v. Hellman & Friedman Capital Partners II, L.P., et al., Civil
Action No. 97-3543 (N.D. Cal. 1997) and Allen T. Gilliland Trust v. Hellman &
Friedman MobileMedia Partners, L.L.C., et al., Case No. 989891 (Cal. Super.
Ct. 1997).
"Semi-Annual Distribution Date" means the last Business Day of each June and
December after the Effective Date and prior to the Final Distribution Date;
provided, that if the Effective Date is within 60 days before the end of June
or December, the first Semi-Annual Distribution Date will be the last Business
Day of the next succeeding June (if the Effective Date is in December) or
December (if the Effective Date is in June).
"Standby Purchase Commitment" means the various commitments of the Standby
Purchasers to purchase Arch Capital Shares in the event any Rights are not
exercised in the Rights Offering, as evidenced by the letters attached hereto
as Exhibits B-1 through B-6, as such letters may be amended from time to time.
"Standby Purchasers" means those creditors of the Debtors that have executed
a Standby Purchase Commitment.
"Subordinated Indemnification Obligation Claims" means Indemnification
Obligations that are rejected pursuant to Section 7.5(A) and any Claims
arising therefrom.
"Subordinated Indentures" means, collectively, the 9 3/8% Note Indenture and
the 10 1/2% Note Indenture.
"Subordinated Noteholder Claims" means all Claims arising under or relating
to the Subordinated Notes, the Subordinated Indentures and related agreements,
other than Note Litigation Claims.
"Subordinated Notes" means, collectively, the 9 3/8% Notes and the 10 1/2%
Notes.
"Subsidiary Claim" means any Claim by a Debtor against another Debtor.
"Subsidiary Interest" means any Interest held by a Debtor in another Debtor,
including all options, warrants and other rights to purchase any such Interest
in a Debtor held by another Debtor.
"Tower Sale Agreement" means the Purchase Agreement between the Debtors and
Pinnacle Towers Inc. dated July 7, 1998, as approved by the Bankruptcy Court
on August 10, 1998, or as amended in accordance therewith and in accordance
with the order of the Bankruptcy Court.
"Unsecured Claim" means a Claim that is not an Administrative Claim, a
Priority Claim, a Priority Tax Claim or a Secured Claim.
"Voting Deadline" means that date set in an order of the Bankruptcy Court as
the deadline for the return of Ballots accepting or rejecting this Plan.
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1.2 Interpretation. For purposes of this Plan: (a) whenever from the context
it is appropriate, each term, whether stated in the singular or the plural,
will include both the singular and the plural; (b) unless otherwise provided
in this Plan, any reference in this Plan to a contract, instrument, release,
indenture or other agreement or document being in a particular form or on
particular terms and conditions means that such document will be substantially
in such form or substantially on such terms and conditions; (c) unless
otherwise provided in this Plan, any reference in this Plan to an existing
document or Exhibit means such document or Exhibit, as it may have been or may
be amended, modified or supplemented pursuant to this Plan; (d) unless
otherwise specified herein, any reference to an entity as a holder of a Claim
includes that entity's successors, assigns and affiliates; (e) unless
otherwise specified, all references in this Plan to Sections, Articles and
Exhibits are references to Sections, Articles and Exhibits of or to this Plan;
(f) the words "herein" and "hereto" refer to this Plan in its entirety rather
than to a particular portion of this Plan; (g) captions and headings to
Articles and Sections are inserted for convenience of reference only and are
not intended to be part of or to affect the interpretation of this Plan; and
(h) the rules of construction set forth in section 102 of the Code will apply.
1.3 Computation of Time. In computing any period of time prescribed or
allowed by this Plan, the provisions of Bankruptcy Rule 9006(a) will apply.
ARTICLE II
Classification And Treatment Of Claims And Interests
The following is a designation of the Classes of Claims and Interests
classified under this Plan, and the treatment to be provided to each such
Class.
A Claim or Interest shall be deemed classified in a particular Class only to
the extent that the Claim or Interest qualifies within the description of that
Class and shall be deemed classified in a different Class to the extent that
any remainder of the Claim or Interest qualifies within the description of
such different Class. Administrative Claims and Priority Tax Claims have not
been classified in accordance with section 1123(a)(1) of the Code, although
the treatment for such unclassified Claims is set forth below.
The treatment of and consideration to be provided on account of Claims and
Interests pursuant to this Plan shall be in full settlement, release and
discharge of such Claims and Interests; provided, that such discharge shall
not affect the liability of any other entity on, or the property of any other
entity encumbered to secure payment of, any such Claim or Interest, except as
otherwise provided in this Plan; and provided, further, that such discharge
shall not affect the Reorganized Debtors' obligations under and pursuant to
this Plan. The treatment of and consideration to be provided to Allowed Claim
and Interest holders in each Class shall apply to all of the Cases.
No Claim shall entitle the holder thereof to a distribution of cash or
securities or to other consideration pursuant to this Plan unless, and only to
the extent that, such Claim is an Allowed Claim.
UNCLASSIFIED CLAIMS
2.1 Administrative Claims.
A. General. Subject to the provisions of Section 4.4(A) and unless otherwise
agreed by the holder of an Allowed Administrative Claim (in which event such
other agreement shall govern), each holder of an Allowed Administrative Claim
shall receive on account of such Administrative Claim: (i) cash equal to the
unpaid amount of such Allowed Administrative Claim; or (ii) at the option of
Reorganized Communications, payment in accordance with the ordinary business
terms of such Allowed Administrative Claim.
B. Statutory Fees. On or before the Effective Date, Administrative Claims
for fees payable pursuant to section 1930 of title 28 of the United States
Code, 28 U.S.C. (S) 1930, as determined by the Bankruptcy Court
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at the Confirmation Hearing, will be paid in cash in an amount equal to the
amount of such Administrative Claims. All such fees payable after the
Effective Date will be assumed by the Reorganized Debtors.
C. Ordinary Course Liabilities. Administrative Claims based on liabilities
incurred by the Debtors in the ordinary course of their businesses will be
assumed and paid by Reorganized MCCA pursuant to the terms and conditions of
the particular transaction giving rise to such Administrative Claim, without
any further action by the holders of such Claims.
D. Funding of Certain Administrative Claims. Arch shall make available to
Reorganized Communications any monies necessary for Reorganized Communications
to make timely payment of all Administrative Claims; provided, that in the
event the sum of Capped Administrative Claims and the costs and expenses of
the Standby Purchasers as provided in the Standby Purchase Commitment exceeds
$34,000,000, the number of Arch Common Shares constituting the Creditor Stock
Pool shall be reduced by a number of shares equal to (i) the excess of the sum
of (x) Capped Administrative Claims and (y) the costs and expenses of the
Standby Purchasers as provided in the Standby Purchase Commitment over
$34,000,000, divided by (ii) $25.315; and provided, further, that in the event
Arch effects the Reverse Stock Split (as defined in the Merger Agreement), the
number of Arch Common Shares constituting the Creditor Stock Pool shall be
adjusted as set forth in Section 8.18 of the Merger Agreement.
2.2 Priority Tax Claims. Unless otherwise agreed by the holder of an Allowed
Priority Tax Claim (in which event such other agreement shall govern), each
holder of an Allowed Priority Tax Claim against any of the Debtors shall, on
the Effective Date, receive, at Arch's option, either (a) cash equal to the
amount of such Allowed Priority Tax Claim or (b) a promissory note payable by
Reorganized Communications in a principal amount equal to the amount of such
Allowed Priority Tax Claim on which interest shall accrue from and after the
Effective Date at the rate of 7% or such higher or lower rate as is determined
by the Bankruptcy Court to be appropriate under section 1129(a)(9)(C) of the
Code and shall be paid semiannually in arrears; the principal amount of the
promissory note shall be paid in full on a date or dates six (6) years after
the date of assessment of such Allowed Priority Tax Claim.
CLASSIFIED CLAIMS AGAINST AND INTERESTS IN THE DEBTORS
2.3 Class 1 Claims (Priority Claims).
A. Classification. Class 1 consists of all Priority Claims against any of
the Debtors.
B. Allowance. Claims in Class 1 shall be allowed or disallowed in accordance
with Section 4.4(B) of this Plan and applicable provisions of the Code and
Bankruptcy Rules.
C. Treatment. Allowed Claims in Class 1 shall be paid in full in cash on the
later of the Effective Date and a date that is as soon as practicable after
the date upon which such Claim becomes an Allowed Priority Claim.
D. Impairment and Voting. Class 1 Claims are unimpaired and are not entitled
to vote on this Plan.
2.4 Class 2 Claims (Miscellaneous Secured Claims).
A. Classification. Class 2 consists of all Miscellaneous Secured Claims
against any of the Debtors, if any.
B. Allowance. Claims in Class 2 shall be allowed or disallowed in accordance
with Section 4.4(B) of this Plan and applicable provisions of the Code and
Bankruptcy Rules.
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C. Treatment. The legal, equitable and contractual rights to which each
holder of an Allowed Claim in Class 2 is entitled shall be left unaltered or,
at the option of the Reorganized Debtors, shall be left unimpaired in the
manner described in section 1124(2) of the Code.
D. Impairment and Voting. Class 2 Claims are unimpaired and are not entitled
to vote on this Plan.
2.5 Class 3 Claims (Customer Refund Claims).
A. Classification. Class 3 consists of all Customer Refund Claims against
any of the Debtors not otherwise classified in Class 1 or Class 2.
B. Allowance. Claims in Class 3 shall be allowed or disallowed in accordance
with Section 4.4(B) of this Plan and applicable provisions of the Code and
Bankruptcy Rules.
C. Treatment. The legal, equitable and contractual rights to which each
holder of an Allowed Claim in Class 3 is entitled shall be left unaltered or,
at the option of the Reorganized Debtors, shall be left unimpaired in the
manner described in section 1124(2) of the Code.
D. Impairment and Voting. Class 3 Claims are unimpaired and are not entitled
to vote on this Plan.
2.6 Class 4 Claims (Claims arising under or related to the 1995 Credit
Agreement).
A. Classification. Class 4 consists of all Secured Claims against any of the
Debtors arising under or related to the 1995 Credit Agreement.
B. Allowance. Allowed Class 4 Claims shall consist of the following unpaid
obligations arising under the 1995 Credit Agreement, and shall be Allowed in
an aggregate amount equal to: (i) $479,000,000; (ii) reasonable accrued and
unpaid commitment, letter of credit and similar fees under the 1995 Credit
Agreement, in an amount, as of the Petition Date, equal to $179,148.29,
together with any such amounts accrued after the Petition Date and unpaid as
of the Effective Date; (iii) the unpaid, reasonable costs and expenses of the
Pre-Petition Agent, to the extent provided in the 1995 Credit Agreement; and
(iv) the unpaid, reasonable costs and expenses of the members of the Steering
Committee for the Pre-Petition Lenders, other than the Pre-Petition Agent, up
to the aggregate amount of $1,000,000. Adequate protection payments in
connection with, and the costs and expenses of the Pre-Petition Agent arising
under, the 1995 Credit Agreement shall continue to be paid in cash through the
Effective Date at the rate and in the manner set forth under the DIP Approval
Orders. Class 4 Claims shall not include interest accrued at the default rate
under Section 5.4(c) of the 1995 Credit Agreement or otherwise.
C. Treatment. Each holder of an Allowed Claim in Class 4 shall receive, in
full satisfaction of its Claim, cash equal to the amount of its Allowed Claim,
payable in accordance with Section 4.3(A).
D. Impairment and Voting. Class 4 Claims are impaired and are entitled to
vote on this Plan.
2.7 Class 5 Claims (Claims arising under or related to the Dial Page Notes).
A. Classification. Class 5 consists of all Claims against any of the Debtors
arising under or related to the Dial Page Notes, the Dial Page Indenture and
related agreements, other than Note Litigation Claims.
B. Allowance. Class 5 Claims shall be Allowed Claims in the sum of: (i) the
outstanding principal amount of the Dial Page Notes; (ii) unpaid interest on
the Dial Page Notes accrued to the Effective Date calculated at the non-
default rate set forth in the Dial Page Notes; and (iii) the unpaid reasonable
fees and expenses of the trustee for the Dial Page Notes incurred prior to the
Petition Date, to the extent provided for in the Dial Page Indenture.
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C. Treatment. Each holder of an Allowed Claim in Class 5 shall receive, in
full satisfaction of its Claim, cash equal to the full amount of its Allowed
Claim, payable in accordance with Section 4.3(B).
D. Impairment and Voting. Class 5 Claims are impaired and are entitled to
vote on this Plan.
2.8 Class 6 Claims (Non-Priority Unsecured Claims).
A. Classification. Class 6 consists of all Non-Priority Unsecured Claims
against any of the Debtors, including the Subordinated Noteholder Claims.
B. Allowance. (i) Class 6 Claims other than Subordinated Noteholder Claims
and Personal Injury Claims shall be allowed or disallowed in accordance with
Section 4.4(B) and applicable provisions of the Code and Bankruptcy Rules,
(ii) Subordinated Noteholder Claims other than Claims of the indenture
trustees under the Subordinated Indentures shall be Allowed Claims in the sum
of: (x) the outstanding principal amount (or outstanding accreted principal
amount, as the case may be) of the Subordinated Notes and (y) unpaid interest
on the Subordinated Notes accrued prior to the Petition Date calculated at the
non-default rate set forth in the Subordinated Notes, (iii) Subordinated
Noteholder Claims for the indenture trustees under the Subordinated Indentures
shall be Allowed Claims in an amount equal to the unpaid reasonable fees and
expenses of each such indenture trustee incurred prior to and after the
Petition Date through the Effective Date, to the extent provided for in the
Subordinated Indentures, and (iv) Personal Injury Claims shall be liquidated
and allowed or disallowed in the district court in which the Cases are
pending, or in the district court in the district in which the claim arose, as
determined by the district court in which the Cases are pending.
C. Treatment.
1. Each holder of an Allowed Claim in Class 6 (other than the indenture
trustees under the Subordinated Indentures) shall receive:
(a) for each holder of an Allowed Claim as of the Rights Offering Initial
Record Date, from Arch on the Rights Offering Commencement Date, its Rights
Offering Pro Rata Share of the Rights Offering Distribution Pool;
(b) for each holder of a Claim that becomes an Allowed Claim after the
Rights Offering Initial Record Date but before the Rights Offering
Supplemental Record Date, (i) from Arch, as soon as practicable after the
Rights Offering Supplemental Record Date, an amount of Rights from the
Rights Reserve equal to the amount of Rights that would have been such
holder's Rights Offering Pro Rata Share of the Rights Offering Distribution
Pool if such holder's Claim had been an Allowed Claim as of the Rights
Offering Initial Record Date or, (ii) if the number of Rights in the Rights
Reserve on the Rights Offering Supplemental Record Date is insufficient to
make the distribution set forth in clause (i), from Arch, (x) its ratable
share (based on such holders' respective amounts of Allowed Class 6 Claims)
of the Rights in the Rights Reserve on such date and (y) its Cash
Equivalent of each Right (or portion thereof) that would have been
distributed pursuant to clause (i) if sufficient Rights had been available
in the Rights Reserve on the Rights Offering Supplemental Record Date;
(c) from Arch on the Effective Date, if such holder has exercised any or
all of its Rights in accordance with the terms and conditions thereof, for
each Right so exercised, one Arch Capital Share;
(d) for each holder of a Claim in Class 6 that is not Allowed as of the
Rights Offering Supplemental Record Date, from Arch, instead of receiving
any Rights, as soon as reasonably practical after such Claim becomes an
Allowed Claim (but no sooner than the Effective Date), its Cash Equivalent;
(e) from the Exchange Agent (x) if such Claim is an Allowed Claim on the
Effective Date, on or as soon as practicable after the Effective Date, its
Class 6 Pro Rata Share of the Creditor Stock Pool or (y) if such Claim is
not an Allowed Claim on the Effective Date, on a later date after which the
Claim is Allowed, its Class 6 Pro Rata Share of the Creditor Stock Pool;
and
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(f) from the Exchange Agent on the Final Distribution Date, its Class 6
Adjusted Pro Rata Share of the Arch Common Shares remaining in the Creditor
Stock Pool, if any, on such date; provided, that if there are fewer than
10,000 Arch Common Shares remaining in the Creditor Stock Pool on the Final
Distribution Date, no distribution will be made to holders of Allowed Class
6 Claims on such date, and the Arch Common Shares remaining in the Creditor
Stock Pool on such date shall be returned to Arch and become treasury
shares.
2. In lieu of the foregoing treatment, any holder of a Claim in Class 6 of
$2,000 or less may elect, by marking the appropriate box on the Ballot sent to
such holder, to receive cash equal to 50% of its Allowed Claim, or, if such
holder's claim is in excess of $2,000, such holder may elect to have its Claim
reduced to and Allowed at $2,000 and receive cash with respect to such reduced
Claim in accordance with this Section 2.8(C)(2).
3. On the Effective Date, the Reorganized Debtors shall pay to the indenture
trustees under the Subordinated Indentures cash equal to the amount of fees
and expenses of the indenture trustees (including the reasonable fees and
expenses of counsel retained by the indenture trustees), in accordance with
and to the extent provided for in the Subordinated Indentures, whether
incurred prior or subsequent to the Petition Date, without application by or
on behalf of the indenture trustees or their respective counsel to the
Bankruptcy Court.
D. Impairment and Voting. Class 6 Claims are impaired and are entitled to
vote on this Plan.
2.9 Class 7 Claims (Note Litigation Claims).
A. Classification. Class 7 consists of all Note Litigation Claims against
any of the Debtors.
B. Treatment. The holders of Claims in Class 7 shall not be entitled to
receive or retain any property pursuant to this Plan on account of their
Claims.
C. Impairment and Voting. Class 7 Claims are impaired and are deemed not to
have accepted this Plan.
2.10 Class 8 Claims and Interests (Common Stock Claims and Interests and
Subordinated Indemnification Obligation Claims).
A. Classification. Class 8 consists of all Interests arising from or related
to the Common Stock, all Common Stock Claims and all Subordinated
Indemnification Obligation Claims against any of the Debtors.
B. Treatment. Interests in Class 8 shall be canceled, and the holders of
Claims and Interests in Class 8 shall not be entitled to receive or retain any
property on account of their Claims and Interests.
C. Impairment and Voting. Class 8 Claims and Interests are impaired and are
deemed not to have accepted this Plan.
2.11 Class 9 Claims and Interests (Subsidiary Claims and Interests).
A. Classification. Class 9 consists of all Subsidiary Claims and Subsidiary
Interests.
B. Treatment. The Interests in Class 9 shall be canceled, except that, in
accordance with Section 4.2(B), Reorganized Communications shall retain its
Interests in Reorganized MCCA, and the holders of Claims and Interests in
Class 9 shall not be entitled to receive or retain any property on account of
such Claims and Interests.
C. Impairment and Voting. Class 9 Claims and Interests are impaired and are
deemed not to have accepted this Plan.
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ARTICLE III
Treatment Of Executory Contracts And Unexpired Leases
3.1 Rejection. No later than 25 days prior to the Voting Deadline, the
Debtors, at the direction of Arch, shall prepare a schedule of the executory
contracts and unexpired leases to be rejected on the Effective Date (the
"Rejection Schedule"). The Rejection Schedule shall be filed and served on
each party to an executory contract or unexpired lease listed thereon to be
rejected by the Debtors no later than twenty days prior to the Voting
Deadline. Any claims for damages arising from the rejection of an executory
contract or unexpired lease listed on the Rejection Schedule must be filed by
the Voting Deadline and shall be determined, if necessary, at Confirmation.
The Rejection Schedule may be amended from and after the Confirmation Date for
sixty days thereafter (but in no event after the Effective Date) by the
Debtors at the direction of Arch and with notice to any party to an executory
contract or unexpired lease added to or removed from such schedule. Any claims
for damages arising from the rejection of an executory contract or unexpired
lease rejected after the Confirmation Date pursuant to this Section 3.1 must
be filed within 20 days after receipt of notice of rejection of such contract.
Any such Claims not filed within the applicable 20-day period shall be barred
and may not thereafter be asserted.
3.2 Assumption.
A. Assumed Contracts. Each executory contract or unexpired lease of the
Debtors that has not expired by its own terms prior to the Effective Date, has
not been rejected during the Cases prior to Confirmation, is not subject to a
notice of rejection and is not rejected under this Plan shall, by the terms of
this Plan, be assumed by Reorganized MCCA pursuant to sections 365 and
1123(b)(2) of the Code on the Effective Date. All such assumed contracts,
unexpired leases, franchises and permits, and any contracts or unexpired
leases assumed by the Debtors by order of the Bankruptcy Court prior to the
Confirmation Date, shall be vested in and continue in effect for the benefit
of the Reorganized Debtors.
B. Cure Payments and Release of Liability. The Debtors shall, at least
twenty days prior to the Voting Deadline, file and serve on all parties to
executory contracts and unexpired leases to be assumed as of the Effective
Date, and on the Pre-Petition Agent, the Committee and Arch a schedule setting
forth the amount of cure and compensation payments to be provided by the
Reorganized Debtors in accordance with section 365(b)(1) of the Code, which
schedule shall be acceptable to Arch. Objections to any such proposed cure
payment must be made by the Voting Deadline, and shall be determined, if
necessary, at the Confirmation Hearing. In the event the Debtors amend the
Rejection Schedule pursuant to Section 3.1 after the Confirmation Date to
remove an executory contract or unexpired lease therefrom, the Debtors shall,
within five days after such amendment to the Rejection Schedule, file and
serve on all parties to executory contracts and unexpired leases to be assumed
as a result of any such Schedule amendment, and on the Pre-Petition Agent, the
Committee and Arch, a supplemental schedule setting forth the amount of cure
and compensation payments to be provided by the Reorganized Debtors in
accordance with section 365(b)(1) of the Code, which supplemental schedule of
cure payments shall be reasonably acceptable to Arch. Objections to any
proposed cure payment set forth in the supplemental schedule must be made
within 20 days after receipt thereof. A party to an assumed executory contract
or unexpired lease that has not filed an appropriate pleading with the
Bankruptcy Court on or before the applicable 20-day period shall be deemed to
have waived its right to dispute such amount. All unpaid cure and compensation
payments under any executory contracts or unexpired leases that are assumed or
assumed and assigned under this Plan (including, without limitation, Claims
filed in the Cases or listed in the Schedules and Allowed by order of the
Bankruptcy Court prior to the Confirmation Date that relate to executory
contracts or unexpired leases that are assumed or assumed and assigned under
this Plan) shall be made by the Reorganized Debtors as soon as practicable
after the Effective Date, but not later than thirty days after the Effective
Date; provided, that, in the event of a dispute regarding the amount of any
cure and compensation payments, the Reorganized Debtors shall make such cure
and compensation payments as may be required by section 365(b)(1) of the Code
following the entry of a Final Order resolving such dispute.
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C. Continuation of Employment Agreements and Benefits Agreements. On the
Effective Date, the Debtors shall assume pursuant to sections 365 and
1123(b)(2) of the Code the employment and benefit agreements set forth on
Schedule 1.
3.3 Post-Petition Contracts and Leases. All contracts and leases entered
into by the Debtors after the Petition Date, including (a) the Tower Sale
Agreement and (b) the Master Lease between Communications and Pinnacle Towers
Inc. to be entered into pursuant to the Tower Sale Agreement, but excluding
the DIP Credit Agreement, shall be deemed assigned by the Debtors to
Reorganized MCCA on the Effective Date.
ARTICLE IV
Implementation Of Plan
4.1 Actions Occurring Prior to the Effective Date.
A. Actions Occurring Before the Confirmation Date.
1. Rights Offering. Pursuant to the Merger Agreement, Arch will commence the
Rights Offering and the Arch Stockholder Rights Offering.
2. Standby Purchase Commitments. Each of the Standby Purchasers has executed
the Standby Purchase Commitment, copies of which are attached hereto as
Exhibits B-1 through B-6.
B. Actions Occurring Between the Confirmation Date and the Effective Date.
1. Management and Operation of Debtors. After the Confirmation Date and
until the Effective Date, the Debtors shall be managed by substantially the
same personnel that managed and operated the Debtors on the Confirmation Date,
subject to such changes as may be determined by the Board of Directors of a
Debtor in accordance with the Bylaws and Articles or Certificate of
Incorporation of such Debtor. During such period, the Debtors will conduct
their business in the usual, regular and ordinary course, in a manner
consistent with past practice, sound business practice and the terms of this
Plan and the Merger Agreement, and subject to their obligations as debtors-in-
possession pursuant to the Code.
2. Continuation of Committee. The Committee shall continue to exist after
the Confirmation Date until the Effective Date with the same power and
authority, and the same ability to retain and compensate professionals, as it
had prior to the Confirmation Date, and shall be dissolved on the Effective
Date.
3. Rights of Creditors and Committee. Between the Confirmation Date and the
Effective Date, the Committee, the holders of Claims against and Interests in
the Debtors and the indenture trustees for the Notes shall be parties-in-
interest in all proceedings in the Bankruptcy Court with the same rights to
participate in such proceedings as such persons had prior to Confirmation.
4. Term of Injunctions or Stays. All injunction or stays, whether by
operation of law or by order of the Bankruptcy Court, provided for in the
Cases pursuant to sections 105 or 362 of the Code or otherwise that are in
effect on the Confirmation Date shall remain in full force and effect until
the Effective Date.
5. Sale of Rights Reserve. Arch shall select an agent independent of Arch
(as such term is defined in Regulation M promulgated under the Securities
Exchange Act of 1934), which independent agent shall be reasonably acceptable
to the Debtors and the Committee, to sell Rights from the Rights Reserve in
the over-the-counter market on a date or dates no more than five business days
in advance of the Rights Offering Expiration Date. All proceeds derived from
such sale shall be distributed to Arch.
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6. Stock Split. If the Reverse Stock Split (as defined in the Merger
Agreement) is effective prior to or simultaneously with the Effective Date,
the number of shares issued or issuable in the Rights Offering and the Arch
Stockholder Rights Offering and the subscription price therefor, the number of
shares specified in the definition of Creditor Stock Pool, the number of
Rights in the Rights Reserve and the number of shares of Arch Common Stock
issuable upon exercise of the Arch Participation Warrants and the exercise
price therefor shall be adjusted as set forth in Section 8.18 of the Merger
Agreement.
4.2 Actions Occurring on the Effective Date.
A. Revesting of Assets. Except as provided in this Plan, all property of the
estate, to the full extent of section 541 of the Code, and any and all other
rights and assets of the Debtors of every kind and nature shall, on the
Effective Date of this Plan, revest in the Reorganized Debtors free and clear
of all Liens, Claims and Interests other than (i) those Liens, Claims and
Interests retained or created pursuant to this Plan and (ii) Liens that have
arisen subsequent to the Petition Date on account of taxes that arose
subsequent to the Petition Date.
B. Merger. Effective as of the Effective Date but immediately prior to the
discharge of the Debtors described in Section 6.1, each of the following
transactions shall occur in the order listed: (i) MobileMedia shall contribute
to the capital of Communications all Subsidiary Claims that it holds; (ii)
Communications shall contribute to the capital of each of its direct
subsidiaries other than FWS Radio, Inc. any Subsidiary Claim that it holds
against each such subsidiary; (iii) Communications shall contribute to the
capital of FWS Radio, Inc., 50% of any Subsidiary Claim that it holds against
FWS Radio, Inc.; (iv) Communications shall contribute to the capital of MCCA
all Subsidiary Claims that it holds against direct and indirect subsidiaries
of MCCA (which includes any remaining Subsidiary Claim, against FWS Radio,
Inc.); (v) MCCA shall contribute to the capital of each of its direct
subsidiaries other than MobileComm of the West, Inc. any Subsidiary Claim that
it holds against each such subsidiary; (vi) MCCA shall contribute to the
capital of MobileComm of the West, Inc. 89% of any Subsidiary Claim that it
holds against MobileComm of the West, Inc.; (vii) MCCA shall contribute to the
capital of MobileComm of the Northeast, Inc. any remaining Subsidiary Claim
that it holds against MobileComm of the West, Inc. and MobileComm of the
Northeast, Inc. shall, in turn, contribute any such Subsidiary Claim against
MobileComm of the West, Inc. to the capital of MobileComm of the West, Inc.;
and (viii) MCCA shall contribute to the capital of MobileComm of the
Southwest, Inc. any Subsidiary Claim that it holds against FWS Radio, Inc. and
MobileComm of the Southwest, Inc. shall, in turn, contribute any such
Subsidiary Claim against FWS Radio, Inc. to the capital of FWS Radio, Inc.
Effective as of the Effective Date but immediately following the discharge
of the Debtors described in Section 6.1, each of the following transactions
shall occur in the order listed: (i) MobileMedia shall contribute all of its
assets to Communications and thereafter immediately dissolve, at which time
the separate corporate existence of MobileMedia shall cease; (ii)
Communications shall merge with and into Merger Subsidiary, and the separate
corporate existence of Communications shall cease as contemplated by the
Merger Agreement; (iii) MCCA shall merge with and into Delaware Subsidiary
Co., a Delaware corporation originally a wholly owned direct subsidiary of
Communications and a wholly owned direct subsidiary of Merger Subsidiary as a
result of the merger described in clause (ii) of this Section 4.2(B), and the
separate corporate existence of MCCA shall cease; (iv) all wholly owned direct
subsidiaries of MCCA shall be merged with and into Delaware Subsidiary Co. (as
successor to MCCA); (v) Merger Subsidiary (as successor to Communications)
shall contribute its interest in the common stock of FWS Radio, Inc. to
Delaware Subsidiary Co. (as successor to MCCA), and FWS Radio, Inc. shall then
be merged with and into Delaware Subsidiary Co. (as successor to MCCA); (vi)
MobileComm of the West, Inc., a wholly owned direct subsidiary of Delaware
Subsidiary Co. (as successor to MCCA) as a result of the mergers described in
clause (iv) of this Section 4.2(B), shall be merged with and into Delaware
Subsidiary Co. (as successor to MCCA); (vii) Dial Page Southeast, Inc.,
MobileMedia Communications, Inc. (California), MobileMedia DP Properties,
Inc., MobileMedia Paging, Inc., MobileMedia PCS, Inc. and Radio Call Co. of
Virginia, Inc., all wholly owned direct subsidiaries of Merger Subsidiary (as
successor to Communications) shall be merged with and into Delaware Subsidiary
Co. (as successor to MCCA); (viii) Merger Subsidiary shall transfer its assets
(other than its shares of Delaware Subsidiary Co.) to Delaware
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Subsidiary Co.; and (ix) Delaware Subsidiary Co. shall organize License Co.
L.L.C. as a wholly owned limited liability company of Delaware Subsidiary Co.
and shall transfer the Licenses then held by it to License Co. L.L.C. It is
anticipated that License Co. L.L.C. will be taxed as a branch of Delaware
Subsidiary Co. Notwithstanding the foregoing, Arch and the Reorganized Debtors
retain their right to make such changes in the post-Effective Date corporate
structure of Arch and the Reorganized Debtors as is determined in the business
judgment of Arch and Reorganized Communications.
C. Amended Certificates of Incorporation and Corporate Governance.
1. Certificates of Incorporation. As of the Effective Date, each Reorganized
Debtor's Certificate of Incorporation shall comply with section 1123(a)(6) of
the Code.
2. Bylaws. As of the Effective Date, the bylaws of Reorganized
Communications shall be the same as the bylaws of the Merger Subsidiary as in
effect immediately prior to the Effective Date (except that the name of the
corporation set forth therein shall be changed to "MobileMedia Communications,
Inc."), and the bylaws of Reorganized MCCA shall be the same as the bylaws of
Delaware Subsidiary Co. as in effect immediately prior to the Effective Date
(except that the name of the corporation set forth therein shall be changed to
"Mobile Communications Corporation of America"). Each Reorganized Debtor's
Bylaws will be effective as of the Effective Date.
3. Corporate Governance. The directors and officers of each Debtor shall
continue to serve in such capacities until the Effective Date. As of the
Effective Date, the directors and officers of each Debtor that is not a
Reorganized Debtor will be terminated, the directors and officers of Merger
Subsidiary immediately prior to the Effective Date shall become the directors
and officers of Reorganized Communications, the directors of Merger Subsidiary
immediately prior to the Effective Date shall become the directors of
Reorganized MCCA and the officers of Delaware Subsidiary Co. immediately prior
to the Effective Date shall become the officers of Reorganized MCCA. The
Debtors shall file with the Bankruptcy Court no later than ten (10) Business
Days prior to the Voting Deadline a statement setting forth the office, the
names and affiliations of, and the compensation proposed to be paid to, the
individuals intended to serve as directors and officers of each Reorganized
Debtor, as well as of Arch, on and after the Effective Date. On and after the
Effective Date, each Reorganized Debtor shall be governed in accordance with
such Reorganized Debtor's Certificate of Incorporation and such Reorganized
Debtor's Bylaws.
4. Amendments after the Effective Date. After the Effective Date, each
Reorganized Debtor's Certificate of Incorporation, each Reorganized Debtor's
Bylaws and the officers and directors of each Reorganized Debtor shall be
subject to such amendments or changes as may be made by law, or by such
Reorganized Debtor's Certificate of Incorporation or such Reorganized Debtor's
Bylaws.
5. Estate Representative. Within 15 days after the Confirmation Date, the
Committee shall designate a person, subject to Arch's and the Debtors' consent
(which consent shall not be unreasonably withheld) (the "Estate
Representative"), who shall be responsible for the winding up of the Debtors'
estates after the Effective Date. The Estate Representative shall have the
authority to hire counsel and other advisors, to prosecute and settle Disputed
Claims, to oversee distributions by the Exchange Agent, to pursue any
preserved Causes of Action and otherwise to effect the closing of the Cases.
The Estate Representative shall be reimbursed for all reasonable expenses
incurred in the performance of his or her duties as Estate Representative by
Arch based on a monthly budget to be submitted to Arch no later than ten
Business Days prior to the end of each month after the Effective Date for the
succeeding month, which Budget shall set forth in reasonable detail the
proposed activities to be undertaken by the Estate Representative during such
month and the estimated costs and expenses therefor. If Arch does not object
to such Budget within five Business Days after receipt thereof, it shall be
the final budget for such month. At least once every calendar quarter, the
Estate Representative shall report to Arch on the material activities taken in
the prior quarter and to be taken in the succeeding quarter, which activities
shall be reasonably acceptable to Arch.
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D. Cancellation of Stock. On and as of the Effective Date, the Common Stock,
and each share of capital stock of each Debtor other than MobileMedia not
owned, beneficially and of record, by MobileMedia or one of the other Debtors,
shall be canceled and rendered null and void.
4.3 Distributions Occurring On and After the Effective Date.
A. Distributions to Holders of Allowed Class 4 Claims. The cash distribution
to be made to the holders of Allowed Class 4 Claims shall be made by wire
transfer by Arch on the Effective Date or the first Business Day thereafter to
the Pre-Petition Agent, which shall, subject to the rights of the Pre-Petition
Agent, if any, against the other holders of Allowed Class 4 Claims under the
1995 Credit Agreement, promptly transmit to each such holder its Pro Rata
Share of the cash provided by Arch; provided, that, if requested by a Standby
Purchaser in writing at least two days prior to the Effective Date, any cash
to be distributed to the Standby Purchaser on account of such Standby
Purchaser's Allowed Class 4 Claim shall, in accordance with the instructions
included in such written request, be applied on behalf of the Standby
Purchaser first to the payment of any amounts required to be paid by such
Standby Purchaser in accordance with its Standby Purchase Commitment.
B. Distributions to Holders of Dial Page Notes.
1. Exchange of Notes. The cash distribution to be made to the holders of
Allowed Class 5 Claims shall be made by Reorganized Communications to the Dial
Page Indenture Trustee on the Effective Date or the first Business Day
thereafter, which shall, subject to the rights of such Dial Page Indenture
Trustee as against holders of the Dial Page Notes under the Dial Page
Indenture, transmit, upon surrender by a holder of its Dial Page Notes, the
cash to which such holder is entitled under Section 2.7(C). The reasonable
fees and expenses of the Dial Page Indenture Trustee incurred solely in
connection with making such distributions, unless otherwise paid hereunder,
shall be paid by Reorganized Communications to the extent so required by the
Dial Page Indenture or as otherwise agreed between Reorganized Communications,
the Dial Page Indenture Trustee and Arch, and in any case subject to required
approvals of the Bankruptcy Court, if any.
2. Lost Notes. If a holder of a Dial Page Note is unable to surrender such
Note because it has been destroyed, lost or stolen, such holder may receive a
distribution with respect to such Note upon request to the Dial Page Indenture
Trustee in an acceptable form with: (i) proof of such holder's title to such
Note; (ii) proof of the destruction or theft of such Note, or an affidavit to
the effect that the same has been lost and after diligent search cannot be
found; and (iii) such indemnification as may reasonably be required by the
Reorganized Debtors to indemnify Arch, the Reorganized Debtors, the Dial Page
Indenture Trustee and all other persons deemed appropriate by the Reorganized
Debtors, against any loss, action, suit or other claim whatsoever that may be
made as a result of such holder's receipt of a distribution on account of such
Dial Page Note under this Plan.
C. Distributions from Arch. Arch will distribute to each holder of an
Allowed Class 6 Claim and each Standby Purchaser that exercised its Rights in
accordance with the terms thereof (and, in the case of the Standby Purchasers,
in accordance with the terms of the Standby Purchase Commitment), on the
Effective Date, for each Right so exercised, the Arch Common Shares or Arch
Class B Shares, as applicable, subscribed for. Arch will distribute to each
holder of an Allowed Class 6 Claim that was not Allowed as of the Rights
Offering Supplemental Record Date, as soon as practicable after such Claim is
Allowed (but no sooner than the Effective Date), its Cash Equivalent, as
provided in Section 2.8(C)(1)(d). In the event the exercise of Rights and the
purchase of Arch Common Shares would cause (i) any "person" or "group" (as
such terms are used in Section 13(d) and 14(d) of the Securities and Exchange
Act of 1934) or (ii) the Standby Purchasers collectively, on the Effective
Date, in the aggregate, to beneficially own, within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934 and Rule 13d-3 and 13d-5
promulgated thereunder (except that a Person shall be deemed to have
beneficial ownership of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), (a) more than 49.0% of the number of shares of the capital
stock of Arch generally entitled to vote in the election of directors or (b)
more than 49.0% of the total voting power of the capital stock of Arch, then,
the "person" or "group" or the Standby Purchasers, shall
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receive in lieu of the Arch Common Shares, Arch Class B Common Shares such
that (x) such "person" or "group" or (y) the Standby Purchasers collectively,
on the Effective Date, in the aggregate, beneficially own, within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, and Rule 13d-3 and
13d-5 promulgated thereunder (except that a Person shall be deemed to have
beneficial ownership of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), (i) no more than 49.0% of the number of shares of the
capital stock of Arch generally entitled to vote in the election of directors
and (ii) no more than 49.0% of the total voting power of the capital stock of
Arch on the Effective Date. For purposes of calculating the percentages
referred to above, it will be assumed that no additional Class 6 Claims are
Allowed after the Effective Date and all of the Arch Common Shares in the
Creditor Stock Pool are distributed to the Allowed Class 6 Claims as of the
Effective Date.
D. Distributions from the Exchange Agent. On the Effective Date, Arch will
deliver to the Exchange Agent a certificate, in the name of the Exchange
Agent, for the number of Arch Common Shares comprising the Creditor Stock
Pool. Distributions to the holders of Allowed Class 6 Claims other than on
account of the Rights, on the Effective Date and thereafter, shall be made by
the Exchange Agent on behalf of Reorganized Communications from the Arch
Common Shares evidenced by the certificate so delivered by Arch.
1. Holders of the Subordinated Notes. As soon as practicable after the
Effective Date, Reorganized Communications shall cause the Exchange Agent to
send a notice and a transmittal form (which shall specify that delivery shall
be effected and risk of loss and title to the Subordinated Notes shall pass,
only upon delivery of the Subordinated Notes to the Exchange Agent, and shall
be in such form and have such other reasonable provisions as Arch may
reasonably specify) to each holder of a Subordinated Note advising such holder
of the effectiveness of the Merger and this Plan and the procedure for
surrendering to the Exchange Agent such Subordinated Note in exchange for the
Arch Common Shares issuable to it pursuant to Section 2.8(C).
Commencing on the Effective Date, the Exchange Agent shall distribute to
each holder of an Allowed Claim that constitutes a Subordinated Noteholder
Claim, upon proper surrender of its Subordinated Notes, its Pro Rata Share of
the Creditor Stock Pool. Thereafter, on each Semi-Annual Distribution Date,
distributions of a holder's Pro Rata Share of the Creditor Stock Pool shall be
made to the holders of Allowed Class 6 Claims that constitute Subordinated
Noteholder Claims who have surrendered their Subordinated Notes since the
preceding Semi-Annual Distribution Date (or, with respect to the first Semi-
Annual Distribution Date, since the Effective Date). Final distributions of
Arch Common Shares shall be made on the Final Distribution Date to each holder
of an Allowed Class 6 Claim constituting a Subordinated Noteholder Claim based
on its Class 6 Adjusted Pro Rata Share of the remaining shares in the Creditor
Stock Pool (subject to Section 2.8(C)(1)(f)).
In the event of a transfer of ownership of Subordinated Notes that is not
registered on the transfer records of the indenture trustee for such
Subordinated Notes, the securities to be distributed may be distributed to a
transferee of the Subordinated Notes if an executed letter of transmittal in
form satisfactory to the Exchange Agent is presented to the Exchange Agent,
accompanied by such documents as are required to evidence and effect such
transfer and by evidence that any applicable transfer taxes have been paid.
After the Effective Date, there shall be no further registration of
transfers on the record books of Reorganized Communications of the
Subordinated Notes outstanding prior to the Effective Date. If, after the
Effective Date, the Subordinated Notes are presented to Reorganized
Communications for any reason, they shall be canceled and exchanged as
provided in this Section 4.3(D)(1).
If any Arch Common Shares are to be issued in the name of a person other
than the person in whose name the Subordinated Note surrendered in exchange
therefor is registered, it shall be a condition to the issuance of such Arch
Common Shares that (i) the Subordinated Note so surrendered shall be
transferable, and shall be properly assigned and endorsed, (ii) such transfer
shall otherwise be proper and (iii) the person requesting such transfer shall
pay to the Exchange Agent any transfer or other taxes payable by reason of the
foregoing or establish to the satisfaction of the Exchange Agent that such
taxes have been paid or are not required to be paid. Notwithstanding the
foregoing, neither the Exchange Agent nor any Person shall be liable to a
holder of
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Subordinated Notes for any Arch Common Shares issuable to such holder pursuant
to Section 2.8(C) that are delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
No dividends or other distributions that are payable to the holders of
record of Arch Common Shares as of a date on or after the Effective Date shall
be paid to holders of Allowed Class 6 Claims entitled to receive Arch Common
Shares pursuant to Section 2.8(C) until such holders surrender their
Subordinated Notes in accordance with this Section 4.3(D)(1). Upon such
surrender, Arch shall pay or deliver to the persons in whose name the
certificates representing such Arch Common Shares are issued any dividends or
other distributions that have been paid or are payable to the holders of
record of Arch Common Shares as of a date on or after the Effective Date and
which were paid or delivered between the Effective Date and the time of such
surrender; provided, that no such person shall be entitled to receive any
interest on such interest payments, dividends or other distributions.
If a holder of a Subordinated Note is unable to surrender such Note because
it has been destroyed, lost or stolen, such holder may receive a distribution
with respect to such Note upon request to the Exchange Agent in an acceptable
form with: (i) proof of such holder's title to such Note; (ii) proof of the
destruction or theft of such Note, or an affidavit to the effect that the same
has been lost and after diligent search cannot be found; and (iii) such
indemnification as may reasonably be required by the Reorganized Debtors to
indemnify Arch, the Reorganized Debtors, the Exchange Agent and all other
persons deemed appropriate by the Reorganized Debtors against any loss,
action, suit or other claim whatsoever that may be made as a result of such
holder's receipt of a distribution on account of such Subordinated Note under
this Plan.
2. Holders of Allowed Class 6 Claims other than the Subordinated Noteholder
Claims. On the Effective Date, the Exchange Agent shall distribute to each
holder of an Effective Date Allowed Claim other than a Subordinated Noteholder
Claim its Class 6 Pro Rata Share of the Creditor Stock Pool. Thereafter, on
each Semi-Annual Distribution Date, distributions of a holder's Pro Rata Share
of the Creditor Stock Pool shall be made to each holder of a Class 6 Claim
other than a Subordinated Noteholder Claim whose Claim has been Allowed (as
certified by the Estate Representative to the Exchange Agent) since the
preceding Semi-Annual Distribution Date (or, with respect to the first Semi-
Annual Distribution Date, since the Effective Date). Final distributions of
Arch Common Shares shall be made on the Final Distribution Date to each holder
of an Allowed Class 6 Claim other than a Subordinated Noteholder Claim based
on its Class 6 Adjusted Pro Rata Share of any shares remaining in the Creditor
Stock Pool (subject to Section 2.8(C)(1)(f)).
3. Fractional Interests. The Arch Capital Shares shall be issued and
distributed in whole shares, and not in fractional shares. To the extent that
any holder would be entitled to a fractional Arch Capital Share but for this
provision, such holder shall, at Arch's option, (i) be paid by Reorganized
Communications cash in an amount equal to the fraction of said share
multiplied by the price of an Arch Capital Share on the Effective Date, or
(ii) receive the number of whole shares determined by rounding up to the next
whole number of shares. Arch Participation Warrants shall be issued and
distributed in whole units, and not in fractional units. To the extent that
any holder would be entitled to a fractional Arch Participation Warrant but
for this provision, such holder shall receive the number of whole warrants
determined by rounding up or down to the next whole number of warrants. For
purposes of this Section 4.3(D), holders of Allowed Claims under or evidenced
by the Notes shall, in the case of Notes held in street name, mean the
beneficial holders thereof.
E. Undeliverable Distributions.
1. Method of Distribution. All property under this Plan to be distributed by
mail shall be sent to the latest mailing address filed of record with the
Bankruptcy Court for the party entitled thereto or, if no such mailing address
has been so filed, the mailing address reflected in the Schedules or, in the
case of the holder of Notes, to the latest mailing address maintained of
record by the pertinent indenture trustee or, if no mailing address is
maintained of record, to the pertinent indenture trustee.
2. Holding and Investment of Undeliverable Distributions. If any Allowed
Claim holder's distribution is returned to the Debtors, Reorganized Debtors,
Arch or the Exchange Agent as undeliverable, no further
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distributions will be made to such holder unless the Debtors, Reorganized
Debtors, Arch or the Exchange Agent, as applicable, are notified in writing of
such holder's then-current address. Undeliverable distributions will remain in
the possession of the Debtors, Reorganized Debtors, Arch or the Exchange
Agent, as applicable, pursuant to this Section 4.3(E)(2) until such time as a
distribution becomes deliverable. Undeliverable cash will be held in a
segregated bank account in the name of the Reorganized Debtors for the benefit
of the potential claimants of such funds and, until such time as such cash
becomes property of Arch pursuant to Section 4.3(E)(4), such cash will not
constitute property of Arch. The Reorganized Debtors will invest any
undeliverable cash in a manner consistent with the Reorganized Debtors'
investment and deposit practices. Undeliverable shares of newly-issued Arch
Common Shares will be held by the Exchange Agent for the benefit of the
potential claimants of such securities until the expiration of the time period
set forth in Section 4.3(E)(4).
3. After Distributions Become Deliverable. On each Semi-Annual Distribution
Date and on the Final Distribution Date, the Debtors, Reorganized Debtors,
Arch or the Exchange Agent, as applicable, will make all distributions that
have, prior to such date, become deliverable to holders of Allowed Claims.
Each such distribution will include, to the extent applicable, dividends or
other distributions, if any, that would have been paid in respect of the
shares of Arch Common Shares or Arch Class B Common Shares distributed to such
holder from the Effective Date through the date of such distribution (without
any interest thereon).
4. Undistributed Property. Any property that remains undeliverable to the
holders of Allowed Claims as of the later of the Final Distribution Date and
the date that is two years after the Effective Date shall be delivered to, and
become the property of, Arch.
F. Compliance with Tax Requirements.
1. In connection with this Plan, to the extent applicable, the Reorganized
Debtors will comply with all tax withholding and reporting requirements
imposed on them by any governmental unit, and all distributions pursuant to
this Plan that may be necessary or appropriate to comply with such withholding
and reporting requirements.
2. Notwithstanding any other provision of this Plan, each entity that has
received any distribution pursuant to this Plan will have sole and exclusive
responsibility for the satisfaction and payment of any tax obligation imposed
by any governmental unit, including income, withholding and other tax
obligations, on account of such distribution.
4.4 Procedure For Determination of Claims and Interests.
A. Bar Date For Administrative Claims.
1. All applications for compensation of professional persons employed by the
Debtors or the Committee pursuant to orders entered by the Bankruptcy Court
and on account of services rendered prior to the Confirmation Date and all
other requests for payment of administrative costs and expenses incurred prior
to the Confirmation Date pursuant to sections 507(a)(1) or 503(b) of the Code
(except for claims for taxes, trade debt and customer deposits and credits
incurred in the ordinary course of business after the Petition Date) shall be
served on the Reorganized Debtors, the DIP Agent, the Pre-Petition Agent, the
Committee and Arch, and filed with the Bankruptcy Court, no later than 15 days
after the Confirmation Date. Any such claim that is not filed and served
within this time shall be forever barred. Objections to any such application
must be filed within 15 days after receipt thereof; provided, that Arch shall
have no right to object to any such application for professional fees. From
and after the hearing on such applications, the Debtors (or the Reorganized
Debtors if the hearing is after the Effective Date) shall be authorized to pay
all of its and the Committee's professionals in full based on monthly
statements delivered to the Debtors subject to the final hearing described in
Section 4.4(A)(2).
2. All applications for final compensation of professional persons employed
by the Debtors or the Committee pursuant to orders entered by the Bankruptcy
Court and on account of services rendered on or after
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the Confirmation Date and prior to the Effective Date and all other requests
for payment of administrative costs and expenses incurred on or after the
Confirmation Date and prior to the Effective Date pursuant to sections
507(a)(1) or 503(b) of the Code (except for claims for taxes, trade debt and
customer deposits and credits incurred in the ordinary course of business
after the Petition Date) shall be served on the Reorganized Debtors, the DIP
Agent, the Pre-Petition Agent, the Committee and Arch, and filed with the
Bankruptcy Court, no later than 15 days after the Effective Date. Any such
claim that is not served and filed within this time shall be forever barred.
Objections to any such application must be filed within 15 days after receipt
thereof; provided, that Arch shall have no right to object to any such
application for professional fees.
B. Objections To Claims.
1. Objections to any Administrative Claim (other than Administrative Claims
governed by Section 4.4(A)) and to any other Claim (other than Class 6 Claims
governed by the next sentence of this Section 4.4(B)(1)) must be filed no
later than the Effective Date. Objections must be filed no later than the
Rights Offering Commencement Date as to any Class 6 Claim other than (x) Class
6 Claims relating to the rejection of executory contracts or unexpired leases
pursuant to this Plan, as to which objections must be filed as set forth in
Section 3.1 and (y) Class 6 Claims as to which a proof of claim is filed after
the Rights Offering Commencement Date, as to which objections must be filed by
the Effective Date. Objections shall be served on the holder of any Claim
being objected to and counsel for each of Arch, the Pre-Petition Agent, the
DIP Agent and the Committee. No distribution shall be made on account of any
Claim that is not Allowed. To the extent any property is distributed to an
entity on account of a Claim that is not an Allowed Claim, such property shall
be held in trust for and shall promptly be returned to the Reorganized
Debtors.
2. On and after the Effective Date, only the Estate Representative shall
have authority to continue to prosecute, settle or withdraw objections to
Claims. After the Effective Date, the Estate Representative shall be entitled
to compromise or settle any Disputed Claim without seeking approval of the
Bankruptcy Court. The Estate Representative shall be paid subject to the
budget described in Section 4.2(C)(5), but without seeking approval of the
Bankruptcy Court.
3. To the extent that a Disputed Claim ultimately becomes an Allowed Claim,
payments and distributions on account of such Allowed Claim shall be made in
accordance with the provisions of this Plan governing the Class of Claims to
which such Claim belongs. As soon as practicable after the date that the order
or judgment of the Bankruptcy Court allowing such Claim becomes a Final Order,
any property that would have been distributed prior to the date on which a
Disputed Claim becomes an Allowed Claim shall be distributed, together with
any dividends, payments or other distributions made on account of such
property from the date such distributions would have been due had such Claim
then been an Allowed Claim to the date such distributions are made (without
any interest thereon).
4.5 Issuance of Arch Capital Shares. On and as of the Effective Date, Arch
will issue the Arch Common Shares and, if applicable pursuant to Section
4.3(C), Arch Class B Common Shares to be distributed to the holders of Allowed
Class 6 Claims, to all persons that exercised Rights and, if applicable, the
Standby Purchasers.
4.6 Issuance of Warrants. On and as of the Effective Date, Arch will issue
the Arch Participation Warrants, as contemplated by this Plan, the Standby
Purchase Commitments and the Merger Agreement.
4.7 Issuance of Rights. On and as of the Rights Offering Commencement Date,
Arch will issue the Rights, as contemplated by this Plan and the Merger
Agreement. On and as of the Arch Stockholder Rights Offering Commencement
Date, Arch will issue the Arch Stockholder Rights, as contemplated by this
Plan and the Merger Agreement.
4.8 Exemption from Securities Laws. All notes, instruments, stock and other
securities distributed pursuant to this Plan (other than the Rights and the
Units) are entitled to the benefits and exemptions provided by section 1145 of
the Code.
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4.9 Registration Rights Agreement. Each Person (other than the Standby
Purchasers) that, as a result of the transactions contemplated by this Plan,
becomes the beneficial owner (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) of at least 10% of the outstanding Arch
Capital Shares, shall be entitled to become a party to the Registration Rights
Agreement.
4.10 Effectuating Documents; Further Transactions; Exemption From Certain
Transfer Taxes. The Chief Executive Officer, President, Chief Financial
Officer or any Vice President of Reorganized Communications or the Debtors, or
such other persons as the Bankruptcy Court may designate at the request of the
Debtors, will be authorized to execute, deliver, file or record such
contracts, instruments, releases, indentures and other agreements or documents
and take such actions as may be necessary or appropriate to effectuate and
implement the provisions of this Plan. The Secretary or any Assistant
Secretary of each Debtor or the Reorganized Debtors or such other persons as
the Bankruptcy Court may designate at the request of the Debtors will be
authorized to certify or attest to any of the foregoing actions.
Pursuant to section 1146(c) of the Code (a) the issuance, transfer or
exchange of Arch Capital Shares, (b) the creation of any mortgage deed or
trust or other security interest and (c) the making of any agreement or
instrument in furtherance of, or in connection with, this Plan, including any
merger agreements, agreements of consolidation, restructuring, disposition,
liquidation or dissolution, deeds, bills of sale, or assignments executed in
connection with the Merger Agreement, will not be subject to any stamp, real
estate transfer tax or similar tax.
4.11 Release of Security Interests. Within ten Business Days after the
Confirmation Date, the Pre-Petition Agent shall deliver to Communications UCC-
3 termination statements and such other documents as are reasonably requested
by Communications to evidence the termination of the security interests
granted to the Pre-Petition Agent to secure amounts outstanding under the 1995
Credit Agreement, which statements and other documents shall be held by
Communications in escrow and released for filing only upon receipt by the Pre-
Petition Agent of the distribution provided for in Section 4.3(A).
ARTICLE V
Conditions To Effective Date
5.1 Conditions to Occurrence of Effective Date. Each of the following is a
condition to the Effective Date:
A. That the Confirmation Order has been entered by the Bankruptcy Court,
more than ten (10) days have elapsed since the Confirmation Date, no stay of
the Confirmation Order is in effect and the Confirmation Order has not been
reversed, modified or vacated;
B. That all conditions to the Closing under the Merger Agreement (other than
the condition set forth in Section 5.1(j) of the Merger Agreement) have been
satisfied or waived by the party entitled thereto, and the Merger shall occur
as contemplated by Section 4.2(B)(ii); and
C. The commitments under the DIP Credit Agreement shall have terminated, all
amounts owing under or in respect of the DIP Credit Agreement shall have been
paid in full in cash and any outstanding letters of credit issued under and in
connection with the DIP Credit Agreement or the 1995 Credit Agreement shall
have been terminated or satisfied, or the Debtors shall have provided cash
collateral therefor in accordance with the terms of the DIP Credit Agreement
or the 1995 Credit Agreement, as applicable.
5.2 Effect of Non-occurrence of Conditions to the Effective Date. If the
Merger Agreement is terminated in accordance with its terms, then the
Confirmation Order shall be vacated by the Bankruptcy Court unless the
Debtors, Arch or the Committee files a motion opposing the vacation of the
Confirmation Order within ten Business Days after termination of the Merger
Agreement. The Confirmation Order may not be vacated after all the conditions
to the Effective Date have either occurred or been waived.
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5.3 Non-consensual Confirmation. Because Classes 7, 8 and 9 are deemed not
to have accepted this Plan pursuant to section 1126(g) of the Code, as to such
Classes and any other Class that votes to reject this Plan, the Debtors are
seeking confirmation of this Plan in accordance with section 1129(b) of the
Code either under the terms provided herein or upon such terms as may exist if
this Plan is modified in accordance with section 1127(d) of the Code. In the
event Class 4 votes to reject this Plan, the Debtors, the Committee and Arch
each reserves the right to contest all or any portion of the amount of the
Allowed Class 4 Claims as set forth in Section 2.6(B).
ARTICLE VI
Discharge, Termination, Injunction and Subordination Rights
6.1 Discharge of Claims and Termination of Interests.
A. Except as provided in the Confirmation Order, the rights afforded under
this Plan and the treatment of Claims and Interests under this Plan will be in
exchange for and in complete satisfaction, discharge and release of all Claims
and satisfaction or termination of all Interests, including any interest
accrued on Claims from the Petition Date. Except as provided in this Plan or
the Confirmation Order, Confirmation will, as of the Effective Date: (i)
discharge the Debtors from all Claims or other debts that arose before the
Effective Date, and all debts of the kind specified in sections 502(g), 502(h)
or 502(i) of the Code, whether or not (x) a proof of claim based on such debt
is filed or deemed filed pursuant to section 501 of the Code, (y) a Claim
based on such debt is allowed pursuant to section 502 of the Code, or (z) the
holder of a Claim based on such debt has accepted this Plan and (ii) satisfy
or terminate all Interests and other rights of equity security holders in the
Debtors.
B. As of the Effective Date, except as provided in this Plan or the
Confirmation Order, all entities will be precluded from asserting against the
Debtors or the Reorganized Debtors, or their respective successors or
property, any other or further Claims, demands, debts, rights, causes of
action, liabilities or equity interests based upon any act, omission,
transaction or other activity of any kind or nature that occurred prior to the
Effective Date. In accordance with the foregoing, except as provided in this
Plan or the Confirmation Order, the Confirmation Order will be a judicial
determination, as of the Effective Date, of discharge of all such Claims and
other debts and liabilities against the Debtors and satisfaction or
termination of all Interests and other rights of equity security holders in
the Debtors, pursuant to sections 524 and 1141 of the Bankruptcy Code, and
such discharge will void any judgment obtained against the Debtors or the
Reorganized Debtors at any time, to the extent that such judgment relates to a
discharged Claim.
6.2 Injunctions.
A. Except as provided in this Plan or the Confirmation Order, as of the
Effective Date, all entities that have held, currently hold or may hold a
Claim or other debt or liability that is discharged or an Interest or other
right of an equity security holder that is terminated pursuant to the terms of
this Plan are permanently enjoined from taking any of the following actions on
account of any such discharged Claims, debts or liabilities or terminated
Interests or rights: (i) commencing or continuing in any manner any action or
other proceeding against the Debtors or the Reorganized Debtors or Arch or its
subsidiaries or their respective property; (ii) enforcing, attaching,
collecting or recovering in any manner any judgment, award, decree or order
against the Debtors or the Reorganized Debtors or Arch or its subsidiaries or
their respective property; (iii) creating, perfecting or enforcing any lien or
encumbrance against the Debtors or the Reorganized Debtors or Arch or its
subsidiaries or their respective property; (iv) asserting a setoff, right of
subrogation or recoupment of any kind against any debt, liability or
obligation due to the Debtors or the Reorganized Debtors or Arch or its
subsidiaries or their respective property; and (v) commencing or continuing
any action, in any manner, in any place that does not comply with or is
inconsistent with the provisions of this Plan.
B. As of the Effective Date, all entities that have held, currently hold or
may hold a claim, demand, debt, right, cause of action or liability that is
released pursuant to this Plan are permanently enjoined from taking any of the
following actions on account of such released claims, demands, debts, rights,
causes of action or liabilities:
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(i) commencing or continuing in any manner any action or other proceeding;
(ii) enforcing, attaching, collecting or recovering in any manner any
judgment, award, decree or order; (iii) creating, perfecting or enforcing any
lien or encumbrance; (iv) asserting a setoff, right of subrogation or
recoupment of any kind against any debt, liability or obligation due to any
released entity; and (v) commencing or continuing any action, in any manner,
in any place that does not comply with or is inconsistent with the provisions
of this Plan.
C. By accepting a distribution pursuant to this Plan, each holder of an
Allowed Claim receiving such distribution pursuant to this Plan will be deemed
to have specifically consented to the injunctions set forth in this Section
6.2.
6.3 Termination of Subordination Rights and Settlement of Related Claims and
Controversies.
A. The classification and manner of satisfying all Claims and Interests
under this Plan takes into consideration all contractual, legal and equitable
subordination and turnover rights, whether arising under general principles of
equitable subordination, section 510(c) of the Code or otherwise, that a
holder of a Claim or Interest or the Debtors may have against other Claim
holders with respect to any distribution made pursuant to this Plan. On the
Effective Date, all contractual, legal, equitable subordination and turnover
rights that a holder of a Claim or Interest or the Debtors may have with
respect to any distribution to be made pursuant to this Plan will be
discharged and terminated, and all actions related to the enforcement of such
subordination rights will be permanently enjoined. Accordingly, distributions
pursuant to this Plan to holders of Allowed Claims will not be subject to
payment to a beneficiary of such terminated subordination rights, or to levy,
garnishment, attachment or other legal process by a beneficiary of such
terminated subordination rights.
B. Pursuant to Bankruptcy Rule 9019 and in consideration for the
distributions and other benefits provided under this Plan, the provisions of
this Plan will constitute a good faith compromise and settlement of all claims
or controversies relating to the enforcement or termination of all
contractual, legal and equitable subordination and turnover rights that a
holder of a Claim or Interest or the Debtors may have with respect to any
Allowed Claim or Interest, or any distribution to be made pursuant to this
Plan on account of such Claim. The entry of the Confirmation Order will
constitute the Bankruptcy Court's approval of the compromise or settlement of
all such claims or controversies and the Bankruptcy Court's finding that such
compromise or settlement is in the best interests of the Debtors and the
Reorganized Debtors and their respective property and Claim and Interest
holders, and is fair, equitable and reasonable.
ARTICLE VII
Miscellaneous
7.1 Retention of Jurisdiction. Following the Effective Date, the Bankruptcy
Court shall retain such jurisdiction as is set forth in this Plan. Without in
any manner limiting the scope of the foregoing, the Bankruptcy Court shall
retain jurisdiction for the following purposes:
A. To determine the allowability, classification, priority or subordination
of Claims and Interests upon objection, or to estimate, pursuant to section
502(c) of the Code, the amount of any Claim that is or is anticipated to be
contingent or unliquidated as of the Effective Date, or to hear proceedings to
subordinate Claims or Interests brought by any party in interest with standing
to bring such objection or proceeding;
B. To construe and to take any action authorized by the Code and requested
by the Reorganized Debtors or any other party in interest to enforce this Plan
and the documents and agreements filed in connection with this Plan, issue
such orders as may be necessary for the implementation, execution and
consummation of this Plan, including, without limiting the generality of the
foregoing, orders to expedite regulatory decisions for the implementation of
this Plan and to ensure conformity with the terms and conditions of this Plan,
such documents and agreements and other orders of the Bankruptcy Court,
notwithstanding any otherwise applicable non-bankruptcy law;
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C. To determine any and all applications for allowance of compensation and
expense reimbursement of professionals retained by the Debtors, the
Reorganized Debtors or the Committee, and for members of the Committee, for
periods on or before the Effective Date, and to determine any other request
for payment of administrative expenses;
D. To determine all matters that may be pending before the Bankruptcy Court
on or before the Effective Date;
E. To resolve any dispute regarding the implementation or interpretation of
this Plan, the Merger Agreement or any related agreement or document that
arises at any time before the Cases are closed, including determination, to
the extent a dispute arises, of the entities entitled to a distribution within
any particular Class of Claims and of the scope and nature of the Reorganized
Debtors' obligations to cure defaults under assumed contracts, leases,
franchises and permits;
F. To determine any and all applications pending on the Confirmation Date
for the rejection, assumption or assignment of executory contracts or
unexpired leases entered into prior to the Petition Date, and the allowance of
any Claim resulting therefrom;
G. To determine all applications, adversary proceedings, contested matters
and other litigated matters that were brought or that could have been brought
on or before the Effective Date;
H. To determine matters concerning local, state and federal taxes in
accordance with sections 346, 505 and 1146 of the Code, and to determine any
tax claims that may arise against the Debtors or Reorganized Debtors as a
result of the transactions contemplated by this Plan;
I. To resolve any dispute arising out of actions taken by the Estate
Representative;
J. To modify this Plan pursuant to section 1127 of the Code, or to remedy
any apparent nonmaterial defect or omission in this Plan, or to reconcile any
nonmaterial inconsistency in this Plan so as to carry out its intent and
purposes; and
K. For such other purposes as may be provided for in the Confirmation Order.
Prior to the Effective Date, the Bankruptcy Court shall retain jurisdiction
with respect to each of the foregoing items and all other matters that were
subject to its jurisdiction prior to the Confirmation Date.
7.2 Retention and Enforcement Of Causes Of Action. Pursuant to section
1123(b)(3)(B) of the Code, but subject to Sections 7.3 and 7.4 of this Plan,
the Reorganized Debtors, on behalf of themselves and holders of Allowed Claims
and Interests, shall retain all Causes of Action that the Debtors had or had
power to assert immediately prior to the Effective Date, and may commence or
continue in any appropriate court or tribunal any suit or other proceeding for
the enforcement of such Causes of Action. All Causes of Action shall remain
the property of the Reorganized Debtors. Nothing contained in this Plan shall
constitute a waiver of the rights, if any, of the Debtors or the Reorganized
Debtors to a jury trial with respect to any Cause of Action or objection to
any Claim or Interest.
7.3 Limitation of Liability. None of the Debtors, the Reorganized Debtors,
Arch or any affiliate thereof, the Committee, the Pre-Petition Agent, the Pre-
Petition Lenders, the DIP Agent, the DIP Lenders, the Standby Purchasers, the
indenture trustees for the Notes, Arch's financing sources, nor any of their
respective officers, directors, employees, members, agents, underwriters or
investment bankers, nor any other professional Persons employed by any of them
(collectively, the "Exculpated Persons"), shall have or incur any liability to
any Person for any act taken or omission made in good faith in connection with
or related to formulating, negotiating, implementing, confirming or
consummating this Plan, the Disclosure Statement or any contract, instrument,
release or other agreement or document created in connection with this Plan.
The Exculpated Persons shall have no liability to any Debtor, holder of a
Claim, holder of an Interest, other party in interest in the Cases or any
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other Person for actions taken or not taken under this Plan, in connection
herewith or with respect hereto, or arising out of their administration of
this Plan or the property to be distributed under this Plan, in good faith,
including, without limitation, failure to obtain Confirmation of this Plan or
to satisfy any condition or conditions, or refusal to waive any condition or
conditions, to the occurrence of the Effective Date, and in all respects such
Exculpated Persons shall be entitled to rely upon the advice of counsel with
respect to their duties and responsibilities under this Plan.
7.4 Releases.
A. On the Effective Date, the Reorganized Debtors, on their own behalf and
as representatives of the Debtors' estates, in consideration of services
rendered in the Cases and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, release unconditionally, and
are deemed to release unconditionally, each of the Debtors' (1) present
officers and directors, (2) former officers and directors (other than those
former officers and directors considered or determined as of the Effective
Date by the FCC to be alleged or actual wrongdoers for purposes of the FCC
Proceeding), (3) the entities that elected such directors to the extent they
are or may be liable for the actions or inactions of such directors and (4)
their respective professional advisers (collectively, the "Officer and
Director Releasees"), from any and all claims, obligations, suits, judgments,
damages, rights, causes of action and liabilities whatsoever (including,
without limitation, those arising under the Code), whether known or unknown,
foreseen or unforeseen, existing or hereafter arising, in law, equity or
otherwise, based in whole or in part on any act, omission, transaction, event
or other occurrence taking place before, on or after the Petition Date up to
the Effective Date, in any way relating to the Debtors (before, on or after
the Petition Date), the Cases or this Plan (collectively, the "Released
Matters"); provided, that the foregoing release shall not apply to any action
or omission that constitutes actual fraud or criminal behavior; and provided,
further, that such release shall not be granted to any Officer or Director
Releasee who has a Disputed Claim as of the Effective Date.
B. On the Effective Date, the Reorganized Debtors, on their own behalf and
as representatives of the Debtors' estates, in consideration of services
rendered in the Cases and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, release unconditionally, and
are deemed to release unconditionally, each of (1) the Pre-Petition Lenders,
the Pre-Petition Agent, the DIP Lenders and the DIP Agent and (2) their
respective professional advisers (collectively, the "Lender Releasees"), from
the Released Matters; provided, that the foregoing release shall not apply to
any action or omission that constitutes actual fraud or criminal behavior.
C. On the Effective Date, the Reorganized Debtors, on their own behalf and
as representatives of the Debtors' estates, in consideration of services
rendered in the Cases and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, release unconditionally, and
are deemed to release unconditionally, (1) each member of the Committee, the
Committee and their respective present or former members, officers, directors,
employees, affiliates, advisors, attorneys or agents (collectively, the
"Representatives"), (2) the Standby Purchasers and their Representatives, and
(3) their respective professional advisers (collectively, the "Creditor
Releasees"), from the Released Matters; provided, that the foregoing release
shall not apply to any action or omission that constitutes actual fraud or
criminal behavior.
D. On the Effective Date, the Reorganized Debtors, on their own behalf and
as representatives of the Debtors' estates, in consideration of services
rendered in the Cases and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, release unconditionally, and
are deemed to release unconditionally, Arch, any affiliate of Arch, or Arch's
financing sources, agents, underwriters and investment bankers and their
respective professional advisers (collectively, the "Arch Releasees") from the
Released Matters; provided, that the foregoing release shall not apply to any
action or omission that constitutes actual fraud or criminal behavior.
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E. On the Effective Date, Arch and its subsidiaries shall be deemed to have
unconditionally released the Officer and Director Releasees, the Lender
Releasees and the Creditor Releasees from the Released Matters; provided, that
the foregoing release shall not apply to any action or omission that
constitutes actual fraud or criminal behavior; and provided, further, that
such release shall not be granted to any Officer or Director Releasee who has
a Disputed Claim as of the Effective Date.
F. On the Effective Date, each holder of a Claim that is entitled to vote on
this Plan shall be deemed to have unconditionally released the Officer and
Director Releasees, the Lender Releasees, the Creditor Releasees and the Arch
Releasees from the Released Matters; provided, that the foregoing release
shall not apply to any action or omission that constitutes actual fraud or
criminal behavior and shall not constitute a release of any recovery such
holder would be entitled to as a plaintiff or putative plaintiff in the
Securities Actions or any action initiated after the date hereof based upon
similar factual allegations or alleging similar causes of action to the
Securities Actions; and provided, further, that a holder (other than Arch) may
elect, by checking the appropriate box or boxes provided on the Ballot, not to
grant such release as to the Officer and Director Releasees, the Lender
Releasees, the Creditor Releasees or the Arch Releasees, or all of them.
G. The Confirmation Order shall contain a permanent injunction to effectuate
the releases granted in the foregoing Sections 7.4(A), (B), (C), (D), (E) and
(F). Any release granted pursuant to the foregoing Sections 7.4(A), (B), (C),
(D), (E) and (F) shall be ineffective and null and void automatically and
immediately upon the assertion by any released party of any claim in any
manner or in any forum against any party that granted the release, and all
Causes of Action that the Debtors had or had the power to assert immediately
prior to the Effective Date with respect to any such party shall be preserved
and become the property of the Reorganized Debtors pursuant to Section 7.2.
7.5 Indemnification Obligations; Directors' and Officers' Liability
Insurance.
A. Director Indemnification Obligations and Excluded Indemnification
Obligations shall be deemed to be, and shall be treated as if they are,
executory contracts that are rejected pursuant to section 365 of the Code. Any
Claims arising out of the rejection of the Indemnification Obligations
pursuant to this Section 7.5(A) shall be subordinated in full under sections
510(b) and 510(c) of the Code.
B. Benefit Plan Indemnification Obligations and Indemnification Obligations
with respect to officers and employees who are officers and employees of the
Debtors as of the Effective Date (other than Excluded Indemnification
Obligations) shall be deemed to be, and shall be treated as though they are,
executory contracts that are assumed agreements under this Plan and such
obligations (subject to any defenses thereto) shall remain unaffected and
shall not be discharged or impaired hereby, and any Claim for indemnification
filed by any such party shall not be an Allowed Claim hereunder; provided,
that the foregoing assumption shall not affect any release of any such
obligation given in writing to the Debtors before the Effective Date or to the
Reorganized Debtors on or after the Effective Date or any other releases under
Section 7.4.
C. On the Effective Date, the Reorganized Debtors shall purchase a "run-off"
policy for the Debtors' current and former directors and officers (other than
those former officers and directors considered or determined as of the
Effective Date by the FCC to be alleged or actual wrongdoers for purposes of
the FCC Proceeding), which policy shall provide for aggregate coverage up to
$40 million (or such lesser amount as can be purchased for a premium of
$750,000) for claims made during a period of at least three (3) years
following the Effective Date based on alleged "wrongful acts" through the
Effective Date, and shall contain such other usual and customary terms and
conditions as are approved by the Board of Directors of MobileMedia.
D. As of the Effective Date, Arch shall make available up to an aggregate
amount of $1,000,000 (the "Defense Fund") to be used by present and former
officers and directors (other than those former officers and directors
considered or determined as of the Effective Date by the FCC to be alleged or
actual wrongdoers for purposes of the FCC Proceeding) of the Debtors solely
for the costs and expenses (including reasonable attorneys' fees and expenses)
of defending the Securities Actions not otherwise covered by the Debtors'
insurance. The Defense Fund is being provided by Arch at its election and not
in exchange for any Claim or
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Interest by any officer or director. Provision of the Defense Fund hereunder
shall not negate, constitute a waiver or modification of or otherwise impair
the discharge of the Debtors and the Reorganized Debtors under sections 524
and 1141 of the Code and this Plan. As a condition to any officer or director
obtaining amounts from the Defense Fund, such officer or director shall
deliver to Arch, at Arch's request, a release, in form and substance
reasonably acceptable to Arch, confirming the unconditional release and
discharge of the Arch Releasees and the Reorganized Debtors from the Released
Matters. Any officer or director shall be required to reimburse Arch for any
amounts obtained from the Defense Fund that are subsequently covered by
insurance.
7.6 Terms Binding. Upon the entry of the Confirmation Order, all provisions
of this Plan, including all agreements, instruments and other documents filed
in connection with this Plan and executed by the Debtors, Arch or the
Reorganized Debtors in connection with this Plan, shall be binding upon the
Debtors, Arch, the Reorganized Debtors, all Claim and Interest holders and all
other entities that are affected in any manner by this Plan. All agreements,
instruments and other documents filed in connection with this Plan shall have
full force and effect, and shall bind all parties thereto as of the entry of
the Confirmation Order, whether or not such exhibits actually shall be
executed by parties other than the Debtors or the Reorganized Debtors, or
shall be issued, delivered or recorded on the Effective Date or thereafter.
7.7 Additional Terms of Securities and Other Instruments. Any modification
of the Merger Agreement, the Arch Common Shares and Arch Class B Common
Shares, and all other securities or agreements issued or entered into pursuant
to this Plan after the Voting Deadline, shall be treated as a Plan
modification and shall be governed by section 1127 of the Code.
7.8 Post-Consummation Effect of Evidences of Claims or Interests. Notes,
stock certificates and other evidence of Claims against or Interests in the
Debtors shall, effective on the Effective Date, represent only the right to
participate in the distributions contemplated by this Plan.
7.9 Payment Dates. Whenever any payment to be made under this Plan is due on
a day other than a Business Day, such payment shall instead be made, without
interest, on the next succeeding Business Day.
7.10 Successors and Assigns. The rights, benefits and obligations of any
person named or referred to in this Plan shall be binding upon, and shall
inure to the benefit of, the heir, executor, administrator, successor or
assignee of such person.
7.11 Inconsistencies. In the event that there is any inconsistency between
this Plan and the Disclosure Statement, any exhibit to this Plan or any other
instrument or document created or executed pursuant to this Plan, this Plan
shall govern.
7.12 Compliance with Applicable Law. It is intended that the provisions of
this Plan (including the implementation thereof) shall be in compliance with
applicable law, including, without limitation, the Code, the Delaware General
Corporation Law, as amended, the Communications Act of 1934, as amended, the
Securities Act of 1933, as amended, and the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, as well as, in each case, any rules and
regulations promulgated thereunder. If the Debtors shall conclude that this
Plan may not comply with any of the foregoing, then and in such event the
Debtors intend to amend this Plan in such respects as they deem necessary to
bring this Plan into compliance therewith.
7.13 Governing Law. Except to the extent that the Code or any other federal
law is applicable or to the extent the law of a different jurisdiction is
validly elected by the Debtors, the rights, duties and obligations arising
under this Plan shall be governed in accordance with the substantive laws of
the United States of America and, to the extent federal law is not applicable,
the laws of the State of Delaware.
7.14 Severability. If the Bankruptcy Court determines at the Confirmation
Hearing that any material provision of this Plan is invalid or unenforceable,
such provision, to the extent the Debtors, Arch and the Committee agree, but
subject to section 1127 of the Code, shall be severable from this Plan and
null and void, and, in such event, such determination shall in no way limit or
affect the enforceability or operative effect of any or all other portions of
this Plan.
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7.15 Incorporation by Reference. Each Exhibit or Schedule hereto is
incorporated herein by reference.
MOBILEMEDIA COMMUNICATIONS, INC.
MOBILEMEDIA CORPORATION
MOBILEMEDIA COMMUNICATIONS, INC. (CALIFORNIA)
MOBILEMEDIA DP PROPERTIES, INC.
MOBILEMEDIA PCS, INC.
DIAL PAGE SOUTHEAST, INC.
RADIO CALL COMPANY OF VA. INC.
MOBILEMEDIA PAGING, INC.
MOBILE COMMUNICATIONS CORPORATION OF AMERICA
MOBILECOMM OF THE SOUTHEAST, INC.
MOBILECOMM OF THE NORTHEAST, INC.
MOBILECOMM NATIONWIDE OPERATIONS, INC.
MOBILECOMM OF TENNESSEE, INC.
MOBILECOMM OF THE SOUTHEAST PRIVATE CARRIER OPERATIONS, INC.
MOBILECOMM OF THE SOUTHWEST, INC.
MOBILECOMM OF FLORIDA, INC.
MOBILECOMM OF THE MIDSOUTH, INC.
FWS RADIO, INC.
MOBILECOMM OF THE WEST, INC.
Debtors and Debtors-in-Possession
By: /s/ Joseph A. Bondi
----------------------------------
Joseph A. Bondi
Chairman--Restructuring of
MobileMedia Corporation
J. Ronald Trost
James D. Johnson
Shelley C. Chapman
Lee M. Stein
SIDLEY & AUSTIN
875 Third Avenue
New York, New York 10022
(212) 906-2000
James L. Patton, Jr. (No. 2202)
Joel A. Waite (No. 2925)
YOUNG CONAWAY STARGATT & TAYLOR, LLP
11th Floor--Rodney Square North
P.O. Box 391
Wilmington, Delaware 19899
(302) 571-6600
COUNSEL TO DEBTORS AND DEBTORS-IN-POSSESSION
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ANNEX D
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ARCH COMMUNICATIONS GROUP, INC.
Arch Communications Group, Inc. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
At a duly convened meeting of the Board of Directors of the Corporation, a
resolution was duly adopted pursuant to Section 242 of the General Corporation
Law of the State of Delaware setting forth amendments to the Restated
Certificate of Incorporation of the Corporation, as amended by a Certificate
of Designation dated October 13, 1995 stating the designation and number of
shares, and fixing the relative rights, preferences and limitations, of the
Corporation's Series B Junior Participating Preferred Stock (the "Series B
Certificate of Designation") and a Certificate of Designation dated June 29,
1998 stating the designation and number of shares, and fixing the relative
rights, preferences and limitations, of the Corporation's Series C Convertible
Preferred Stock (as so amended, the "Restated Certificate of Incorporation"),
and declaring such amendments to be advisable. The stockholders of the
Corporation duly approved said proposed amendments in accordance with Section
242 of the General Corporation Law of the State of Delaware at a duly convened
meeting of stockholders. The resolutions setting forth the amendments are as
follows:
RESOLVED: That Article FOURTH of the Restated Certificate of Incorporation
of the Corporation, as previously amended, be and hereby is
further amended by deleting paragraph (a) of said Article FOURTH
and inserting in lieu thereof the following:
(a) The aggregate number of shares of all classes of stock which
the Corporation shall have authority to issue is 375,000,000
shares, consisting of (i) 300,000,000 shares of Common Stock, $.01
par value per share ("Common Stock"), (ii) 65,000,000 shares of
Class B Common Stock, $.01 par value per share ("Class B Common
Stock"), and (iii) 10,000,000 shares of preferred stock, $.01 par
value per share ("Preferred Stock"), of which 300,000 shares have
been designated as Series B Junior Participating Preferred Stock,
$.01 par value per share, 250,000 shares have been designated as
Series C Convertible Preferred Stock, $.01 par value per share,
and 9,450,000 shares remain available for future designation and
issuance in accordance with the General Corporation Law of the
State of Delaware.
FURTHER
RESOLVED:
That Article FOURTH of the Restated Certificate of Incorporation
be and hereby is amended by deleting subparagraph (b)(i) of said
Article FOURTH and inserting in lieu thereof the following:
(i) Common Stock and Class B Common Stock.
(A) Subject to the provisions of any series of Preferred Stock
which may at the time be outstanding, the holders of Common Stock
and Class B Common Stock shall be entitled to receive, when and as
declared from time to time by the Board of Directors out of any
funds legally available for the purpose, such dividends as may be
declared from time to time by the Board of Directors. When and as
dividends are declared thereon, whether payable in cash, property
or securities of the Corporation, each holder of Common Stock or
Class B Common Stock will be entitled to participate in such
dividends ratably on a per share basis. In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, or upon the distribution of its assets,
after the payment in full or the setting apart
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for payment of such preferential amounts, if any, to which the
holders of Preferred Stock at the time outstanding shall be
entitled, the remaining assets of the Corporation available for
payment and distribution to stockholders shall, subject to any
participating or similar rights of any series of Preferred Stock
at the time outstanding, be distributed ratably among the holders
of Common Stock and Class B Common Stock at the time outstanding
on a per share basis. Shares of Common Stock shall have no
preference, conversion, exchange, preemptive or other similar
rights. Shares of Class B Common Stock shall have no preference,
exchange, preemptive right or other similar rights, shall be
identical in all respects to shares of Common Stock except as set
forth in subparagraphs (B), (C) and (D) below, and shall have no
conversion rights except as set forth in subparagraphs (C) and (D)
below.
(B) Except as otherwise required by the General Corporation Law
of the State of Delaware or this Certificate of Incorporation, on
all matters to be voted on by the Corporation's stockholders, the
Common Stock will be entitled to one vote per share. Except as
otherwise required by the General Corporation Law of the State of
Delaware or this Certificate of Incorporation, the Class B Common
Stock shall not be entitled to vote with respect to the election
of directors and shall be entitled to 1/100th vote per share on
all other matters to be voted on by the Corporation's
stockholders. Except as otherwise required by the General
Corporation Law of the State of Delaware or this Certificate of
Incorporation, the Common Stock, the Class B Common Stock and the
Preferred Stock shall vote as a single class with respect to all
matters as to which such shares are entitled to vote.
(C) Upon any transfer of shares of Class B Common Stock to a
person or entity other than (i) any person or entity who received
Class B Common Stock pursuant to Section 4.3(C) of the Debtor's
Third Amended Joint Plan of Reorganization dated December 1, 1998
as filed by MobileMedia Corporation, MobileMedia Communications,
Inc. and MobileMedia Communications, Inc.'s direct and indirect
subsidiaries with the United States Bankruptcy Court for the
District of Delaware, Case No. 97-174 (PJW), including the Rights
Offering as defined therein (the "Initial Distributees"), (ii) any
other person or entity who, when taken together with any of the
Initial Distributees, would constitute a "person" or "group" as
such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, or (iii) any "affiliate" (as
such term is defined in Rule 405 promulgated under the Securities
Act of 1933, as amended) of any of them (collectively, the "Class
B Holders"), such transferred shares shall automatically convert
into an identical number of shares of Common Stock without any
action on the part of any person or entity (except as follows).
The Class B Holder transferring such shares shall surrender to the
Corporation at its principal office the share certificate or
certificates evidencing all such shares of Class B Common Stock
being transferred together with a certificate (a "Transfer
Certificate") (i) stating the number of shares of Class B Common
Stock being transferred to such transferee and (ii) stating that,
to the knowledge of such Class B Holder, after due inquiry, such
transferee is not a Class B Holder. Promptly after the delivery of
such share certificate or certificates, together with such
Transfer Certificate, the Corporation shall (i) cause to be issued
in the name of the transferee identified in the Transfer
Certificate and delivered to such Class B Holder, or to such
person as directed by his or its written order, a share
certificate or certificates for the number of shares of Common
Stock equal to the number of shares of Class B Common Stock being
transferred to such transferee and (ii) cause to be issued in the
name of such Class B Holder and delivered to such Class B Holder a
share certificate or certificates evidencing the number of shares,
if any, of Class B Common Stock evidenced by the share certificate
or certificate(s) surrendered to the Corporation not being so
transferred. Upon such transfer, all rights with respect to the
Class B Common Stock so converted will terminate, except only the
rights of the holders thereof, upon surrender of their share
certificate or certificates therefor, to receive certificates
registered in the name of its transferee for the number of shares
of Common Stock into which such Class B Common Stock has been
converted, and payment of any declared but unpaid dividends
thereon.
D-2
<PAGE>
(D) Any Class B Holder may, at any time and from time to time by
surrendering to the Corporation at its principal office a share
certificate or certificates for shares of Class B Common Stock
together with a certificate (a "Conversion Certificate") stating
that such Class B Holder has transferred shares of Common Stock
(in an amount set forth in such Conversion Certificate) to a
transferee that, to the knowledge of such Class B Holder, after
due inquiry, is not a Class B Holder, request that the Corporation
exchange shares of Common Stock, on a one-for-one basis, for a
number of shares of Class B Common Stock not greater than the
number of shares of Common Stock set forth in such Conversion
Certificate. The Corporation shall, upon receipt of such
certificate or certificates and the Conversion Certificate in a
form the Corporation deems appropriate, issue an equal number of
shares of Common Stock in exchange for such number of shares of
Class B Common Stock set forth in any Conversion Certificate.
(E) All certificates evidencing shares of Class B Common Stock
which are surrendered for transfer and conversion in accordance
with the provisions of subparagraph (C) above, or as accepted for
conversion in accordance with the provisions of subparagraph (D)
above, shall, from and after the presentation thereof together
with any other documentation required hereunder, be deemed to have
been retired and cancelled and the shares of Class B Common Stock
represented thereby converted into Common Stock for all purposes.
The Corporation may thereafter take such appropriate action
(without the need for stockholder action) as may be necessary to
reduce the authorized Class B Common Stock accordingly.
FURTHER
RESOLVED:
That Article FOURTH of the Restated Certificate of Incorporation
be and hereby is amended by deleting subparagraph (b)(ii) of said
Article FOURTH.
FURTHER
RESOLVED:
That the Series B Certificate of Designations be and hereby is
amended by deleting Section 1 thereof and inserting in lieu
thereof the following:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series B Junior Participating
Preferred Stock" (the "Series B Preferred Stock") and the
number of shares constituting the Series B Preferred Stock
shall be 300,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided
that no decrease shall reduce the number of shares of Series B
Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities
issued by the Corporation convertible into Series B Preferred
Stock.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its Chairman
and Chief Executive Officer and attested by its Secretary this day of
, 1998.
Arch Communications Group, Inc.
By:__________________________________
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ANNEX E
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
ARCH COMMUNICATIONS GROUP, INC.
Arch Communications Group, Inc. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
By written action of the Board of Directors of the Corporation, dated ,
1998, the Board of Directors duly adopted resolutions pursuant to Sections
141(f) and 242 of the General Corporation Law of the State of Delaware setting
forth an amendment to the Restated Certificate of Incorporation of the
Corporation, as amended by a Certificate of Designation dated October 13, 1995
stating the designation and number of shares, and fixing the relative rights,
preferences and limitations, of the Corporation's Series B Junior
Participating Preferred Stock (the "Series B Certificate of Designation") and
a Certificate of Designation dated June 29, 1998 stating the designation and
number of shares, and fixing the relative rights, preferences and limitations,
of the Corporation's Series C Convertible Preferred Stock (as so amended, the
"Restated Certificate of Incorporation"), and declaring such amendment to be
advisable. The stockholders of the Corporation duly approved said proposed
amendment in accordance with Section 242 of the General Corporation Law of the
State of Delaware at a duly convened meeting of stockholders.
The resolution setting forth the amendment is as follows:
RESOLVED: That the following paragraph be inserted prior to the first
paragraph of Article FOURTH of the Restated Certificate of
Incorporation:
"That upon the filing date of this Certificate of Amendment of
Restated Certificate of Incorporation of the Corporation (the
"Effective Date"), a reverse split of the Corporation's Common
Stock, $.01 par value per share ("Common Stock"), shall become
effective, such that each outstanding shares of Common Stock
(including treasury shares) immediately prior to the Effective Date
shall be automatically converted into one share of the
Corporation's Common Stock, $ par value per share".
[Include the following paragraph if the authorized number of shares of the
Corporation's Common Stock has increased from 75,000,000 to 365,000,000]
RESOLVED: That Article FOURTH of the Restated Certificate of Incorporation of
the Corporation, as previously amended, be and hereby is further
amended by deleting paragraph (a) of said Article FOURTH and
inserting in lieu thereof the following:
(a) The aggregate number of shares of all classes of stock which
the Corporation shall have authority to issue is 75,000,000 shares,
consisting of (i) 65,000,000 shares of Common Stock, $ par value
per share ("Common Stock"), (ii) 10,000,000 shares of Class B
Common Stock, $ par value per share ("Class B Common Stock"), and
(iii) 10,000,000 shares of preferred stock, $.01 par value per
share ("Preferred Stock"), of which 300,000 shares have been
designated as Series B Junior Participating Preferred Stock, $.01
par value per share, 250,000 shares have been designated as Series
C Convertible Preferred Stock, $.01 par value per share, and
9,450,000 shares remain available for future designation and
issuance in accordance with the General Corporation Law of the
State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its Chairman
and Chief Executive Officer and attested by its Secretary this day of
, 1998.
ARCH COMMUNICATIONS GROUP, INC.
By: _________________________________
C. Edward Baker, Jr.
Chairman of the Board and
Chief Executive Officer
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Arch Certificate provides that Arch will, to the fullest extent
permitted by the DGCL, indemnify all persons whom it has the power to
indemnify against all costs, expenses and liabilities incurred by them by
reason of having been officers or directors of Arch, any subsidiary of Arch or
any other corporation for which such persons acted as an officer or director
at the request of Arch.
The Arch Certificate also provides that the directors of Arch will not be
personally liable for monetary damages to Arch or its stockholders for any act
or omission, provided that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty
to Arch or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL (relating to illegal dividends or stock
redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended to permit further
elimination or limitation of the personal liability of directors, then the
liability of a director of Arch shall be eliminated or limited to the fullest
extent permitted by the DGCL as so amended.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
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2.1 Agreement and Plan of Merger, dated as of August 18, 1998, by and
among Arch Communications Group, Inc., Farm Team Corp., MobileMedia
Corporation and MobileMedia Communications, Inc.,
2.2 First Amendment to Agreement and Plan of Merger, dated as of
September 3, 1998, by and among Arch Communications Group, Inc., Farm
Team Corp. and MobileMedia Communications, Inc.
2.3** Second Amendment to Agreement and Plan of Merger, dated as of
December 1, 1998, by and among Arch Communications Group, Inc., Farm
Team Corp. and MobileMedia Communications, Inc.
3.1 Restated Certificate of Incorporation. (1)
3.2 Certificate of Designations establishing the Series B Junior
Participating Preferred Stock. (2)
3.3 Certificate of Correction, filed with the Secretary of State of
Delaware on February 15, 1996. (1)
3.4 Certificate of Designations establishing the Series C Convertible
Preferred Stock. (3)
3.5 Form of Certificate of Amendment to the Restated Certificate of
Incorporation
3.6 Form of Certificate of Amendment to the Restated Certificate of
Incorporation
3.7 By-laws, as amended. (1)
4.1 Indenture, dated February 1, 1994, between Arch Communications, Inc.
(formerly known as USA Mobile Communications, Inc. II) and United
States Trust Company of New York, as Trustee, relating to the 9 1/2%
Senior Notes due 2004 of Arch Communications, Inc.(4)
4.2 Indenture, dated December 15, 1994, between Arch Communications, Inc.
(formerly known as USA Mobile Communications, Inc. II) and United
States Trust Company of New York, as Trustee, relating to the 14%
Senior Notes due 2004 of Arch Communications, Inc. (5)
4.3 Indenture, dated June 29, 1998, between Arch Communications, Inc. and
U.S. Bank Trust National Association, as Trustee, relating to the 12
3/4% Senior Notes due 2007 of Arch Communications, Inc. (3)
5.1** Opinion of Hale and Dorr LLP
8.1** Tax opinion of Hale and Dorr LLP
10.1 Second Amended and Restated Credit Agreement (Tranche A and Tranche C
Facilities), dated June 29, 1998, among Arch Paging, Inc., the
Lenders party thereto, The Bank of New York, Royal Bank of Canada and
Toronto Dominion (Texas), Inc. (3)
10.2 Second Amended and Restated Credit Agreement (Tranche B Facility),
dated June 29, 1998, among Arch Paging, Inc., the Lenders party
thereto. The Bank of New York, Royal Bank of Canada and Toronto
Dominion (Texas), Inc. (3)
10.3 Asset Purchase and Sale Agreement, dated April 10, 1998, among
OmniAmerica, Inc. and certain subsidiaries of Arch Communications
Group, Inc. (3)
10.4 Letter agreement, dated June 10, 1998, between Arch Communications
Group, Inc. and Motorola, Inc. (3)(6)
10.5** Debtors' Third Amended Joint Plan of Reorganization, dated as of
December 1, 1998, included as Annex C to the Proxy
Statement/Prospectus which is a part of this Registration Statement.
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10.6 Commitment Letters to Purchase Stock and Warrants, dated as of
August 18, 1998, by and among Arch Communications Group, Inc.,
MobileMedia Communications Inc. and W. R. Huff Asset Management Co.,
L.L.C., The Northwestern Mutual Life Insurance Company, Northwestern
Mutual Series Fund, Inc., Credit Suisse First Boston Corporation and
Whippoorwill Associates, Inc.
10.7 Amendments to Commitment Letters to Purchase Stock and Warrants,
dated as of September 3, 1998, by and among Arch Communications
Group, Inc., MobileMedia Communications, Inc. and W.R. Huff Asset
Management Co., L.L.C., The Northwestern Mutual Life Insurance
Company, Northwestern Mutual Series Fund, Inc., Credit Suisse First
Boston Corporation and Whippoorwill Associates, Inc.
10.8** Amendments to Commitment Letters to Purchase Stock and Warrants,
dated as of December 1, 1998, by and among Arch Communications
Group, Inc., MobileMedia Communications, Inc. and W.R. Huff Asset
Management Co., L.L.C., The Northwestern Mutual Life Insurance
Company, Northwestern Mutual Series Fund, Inc., Credit Suisse First
Boston Corporation and Whippoorwill Associates, Inc.
10.9 Form of Registration Rights Agreement among Arch Communications
Group, Inc. and W. R. Huff Asset Management Co., L.L.C., The
Northwestern Mutual Life Insurance Company, Northwestern Mutual
Series Fund, Inc., Credit Suisse First Boston Corporation and
Whippoorwill Associates, Inc.
10.10 Form of Registration Rights Agreement among Arch Communications
Group, Inc. and certain Stockholders.
10.11 Amendment No. 1 to Rights Agreement, dated June 29, 1998, between
Arch Communications Group, Inc. and the Bank of New York. (3)
10.12 Amendment No. 2 to Rights Agreement, dated as of August 18, 1998,
amending the Rights Agreement between Arch Communications Group,
Inc. and the Bank of New York.
10.13 Amendment No. 3 to Rights Agreement, dated September 3, 1998,
amending the Rights Agreement between Arch Communications Group,
Inc. and the Bank of New York.
10.14 Form of Warrant Agreement, between Arch Communications Group, Inc.
and the Bank of New York, as provided for in the First Amendment to
Agreement and Plan of Merger dated as of September 3, 1998, by and
among Arch Communications Group, Inc, Farm Team Corp. and
MobileMedia Communication Inc.
10.15 Commitment Letter, dated as of August 18, 1998, by and among Arch
Paging, Inc. and The Bank of New York, BNY Capital Markets, Inc.,
Toronto Dominion (Texas) Inc., TD Securities (USA) Inc., Royal Bank
of Canada and Barclays Bank PLC amending the Second and Amended
Restated Credit Agreements, dated June 29, 1998 (Tranche A, B and C
Facilities).
10.16 Bridge Commitment Letter, dated as of August 20, 1998, among Arch
Communications, Inc., Arch Communications Group, Inc. and The Bear
Stearns Companies, Inc., The Bank of New York, TD Securities (USA)
Inc. and the Royal Bank of Canada.
10.17 Amendment No. 1 to Registration Rights Agreement, dated August 19,
1998, amending the Registration Rights Agreement dated as of June
29, 1998 by and among Arch Communications Group, Inc. and the
Sandler Capital Partners IV, LP, Sandler Capital Partners IV, FTE
LP, South Fork Partners, The Georgica International Fund Limited,
Aspen Partners and Consolidated Press International Limited.
+10.18 Amended and Restated Stock Option Plan (8)
+10.19 Non-Employee Directors' Stock Option Plan (9)
+10.20 1989 Stock Option Plan, as amended (1)
+10.21 1995 Outside Directors' Stock Option Plan (10)
+10.22 1996 Employee Stock Purchase Plan (11)
+10.23 1997 Stock Option Plan (12)
+10.24 Deferred Compensation Plan for Nonemployee Directors (13)
+10.25 Form of Executive Retention Agreement by and between Messrs. Baker,
Daniels, Kuzia, Pottle and Saynor (13)
10.26 Stock Purchase Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Sandler Capital Partners IV, L.P.,
Sandler Capital Partners IV FTE, L.P., Harvey Sandler, John
Kornreich, Michael J. Marocco, Andrew Sandler, South Fork Partners,
the Georgica International Fund Limited, Aspen Partners and
Consolidated Press International Limited (3)
10.27 Registration Rights Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Sandler Capital Partners IV, L.P.,
Sandler Capital Partners IV FTE, L.P., Harvey Sandler, John
Kornreich, Michael J. Marocco, Andrew Sandler, South Fork Partners,
The Georgica International Fund Limited, Aspen Partners and
Consolidated Press International Limited (3)
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10.28 Exchange Agreement, dated June 29, 1998, between Adelphia
Communications Corporation and Benbow PCS Ventures, Inc. (3)
10.29 Promissory Note, dated June 29, 1998, in the Principal amount of
$285,015, issued by Benbow PCS Ventures, Inc. to Lisa-Gaye Shearing
(3)
10.30 Guaranty, dated June 29, 1998, given by Arch Communications Group,
Inc. to Adelphia Communications Corporation (3)
10.31 Guaranty, dated June 29, 1998, given by Arch Communications Group,
Inc. to Lisa-Gaye Shearing (3)
10.32 Registration Rights Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Adelphia Communications Corporation and
Lisa-Gaye Shearing (3)
21.1** Subsidiaries of the Registrant
23.1** Consent of Hale and Dorr LLP (contained in its opinion filed as
Exhibit 5.1)
23.2** Consent of Arthur Andersen LLP
23.3** Consent of Ernst & Young LLP
23.4** Consent of Wilkinson, Barker, Knauer & Quinn, LLP
23.5** Consent of Wiley, Rein & Fielding
24.1 Power of Attorney (included on signature page to this Registration
Statement)
27.1 Financial Data Schedule (7)
99.1 Form of Subscription Certificate and related documents
99.2** Form of Proxy for the Common Stock of Arch for Arch Annual Meeting
</TABLE>
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* To be filed by amendment.
** Filed herewith.
+ Identifies exhibits constituting a management contract or compensation
plan.
(1) Incorporated by reference from the Registration Statement on Form S-3
(File No. 333-542) of Arch Communications Group, Inc.
(2) Incorporated by reference from the Current Report on Form 8-K of Arch
Communications Group, Inc. dated October 13, 1995 and filed on October
24, 1995.
(3) Incorporated by reference from the Current Report on Form 8-K of Arch
Communications Group, Inc. dated June 26, 1998 and filed on July 23,
1998.
(4) Incorporated by reference from the Registration Statement on Form S-1
(File No. 33-72646) of Arch Communications, Inc.
(5) Incorporated by reference from the Registration Statement on Form S-1
(File No. 33-85580) of Arch Communications, Inc.
(6) A Confidential Treatment Request has been filed with respect to
portions of this exhibit so incorporated by reference.
(7) Incorporated by reference from the Quarterly Report on Form 10-Q of
Arch Communications Group, Inc. for the quarter ended September 30,
1998.
(8) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group. Inc. (then known as USA Mobile Communications
Inc. II) for the fiscal year ended December 31, 1994.
(9) Incorporated by reference from the Registration Statement on Form S-4
(File No. 33-83648) of Arch (then known as USA Mobile Communications
Inc. II).
(10) Incorporated by reference from the Registration Statement on Form S-3
(File No. 33-87474) of Arch Communications Group, Inc.
(11) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1995.
(12) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1996.
(13) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1997.
(B) FINANCIAL STATEMENT SCHEDULES
Schedule II--Valuation and Qualifying Accounts
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
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<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) If the registration is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided, that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Securities Act or Rule 3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Form F-3.
(b) The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such offering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(c) The registrant undertakes that every prospectus: (1) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed
as a part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
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<PAGE>
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of a registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
(f) The registrant undertakes to respond to requests for information that is
incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11,
or 13 of this form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to
the effective date of this Registration Statement through the date of
responding to the request.
(g) The registrant undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included in the
Registration Statement when it became effective.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF WESTBOROUGH,
COMMONWEALTH OF MASSACHUSETTS ON DECEMBER 3, 1998.
Arch Communications, Inc.
/s/ C. Edward Baker, Jr.
By: __________________________________
C. EDWARD BAKER, JR.CHAIRMAN OF
THE BOARD AND CHIEF EXECUTIVE
OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
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SIGNATURE TITLE
DATE
/s/ C. Edward Baker, Chairman of the Board and December 3, 1998
Jr. Chief Executive Officer
- ------------------------ Director (principal executive officer)
C. EDWARD BAKER, JR.
/s/ J. Roy Pottle Executive Vice President and December 3, 1998
- ------------------------ Chief Financial Officer
J. ROY POTTLE (principal financial officer and
principal accounting officer)
* /s/ R. Schorr Berman Director December 3, 1998
- ------------------------
R. SCHORR BERMAN
Director December , 1998
- ------------------------
JAMES S. HUGHES
Director December , 1998
- ------------------------
JOHN KORNREICH
Director December , 1998
- ------------------------
ALLAN L. RAYFIELD
* /s/ John B. Saynor Director December 3, 1998
- ------------------------
JOHN B. SAYNOR
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* /s/ John A. Shane Director December 3,
- ------------------------- 1998
JOHN A. SHANE
By: /s/ Gerald J.
Cimmino December 3,
1998
----------------------
GERALD J. CIMMINO
Attorney in Fact
</TABLE>
II-7
<PAGE>
SCHEDULE II
ARCH COMMUNICATIONS GROUP, INC.
VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE OTHER BALANCE
ALLOWANCE FOR DOUBTFUL AT BEGINNING CHARGED ADDITIONS TO WRITE- AT END
ACCOUNTS OF PERIOD TO EXPENSE ALLOWANCE(1) OFFS OF PERIOD
---------------------- ------------ ---------- ------------ ------- ---------
<S> <C> <C> <C> <C> <C>
Year ended December 31,
1997................... $4,111 $7,181 $ -- $(5,548) $5,744
====== ====== ====== ======= ======
Year ended December 31,
1996................... $2,125 $8,198 $1,757 $(7,969) $4,111
====== ====== ====== ======= ======
Year ended December 31,
1995................... $ 707 $3,915 $1,251 $(3,748) $2,125
====== ====== ====== ======= ======
</TABLE>
- --------
(1) Additions arising through acquisitions of paging companies
S-1
<PAGE>
EXHIBIT INDEX
(A) EXHIBITS
<TABLE>
<C> <S>
2.1 Agreement and Plan of Merger, dated as of August 18, 1998, by and
among Arch Communications Group, Inc., Farm Team Corp., MobileMedia
Corporation and MobileMedia Communications, Inc.,
2.2 First Amendment to Agreement and Plan of Merger, dated as of
September 3, 1998, by and among Arch Communications Group, Inc., Farm
Team Corp. and MobileMedia Communications, Inc.
2.3** Second Amendment to Agreement and Plan of Merger, dated as of
December 1, 1998, by and among Arch Communications Group, Inc., Farm
Team Corp. and MobileMedia Communications, Inc.
3.1 Restated Certificate of Incorporation. (1)
3.2 Certificate of Designations establishing the Series B Junior
Participating Preferred Stock. (2)
3.3 Certificate of Correction, filed with the Secretary of State of
Delaware on February 15, 1996. (1)
3.4 Certificate of Designations establishing the Series C Convertible
Preferred Stock. (3)
3.5 Form of Certificate of Amendment to the Restated Certificate of
Incorporation
3.6 Form of Certificate of Amendment to the Restated Certificate of
Incorporation
3.7 By-laws, as amended. (1)
4.1 Indenture, dated February 1, 1994, between Arch Communications, Inc.
(formerly known as USA Mobile Communications, Inc. II) and United
States Trust Company of New York, as Trustee, relating to the 9 1/2%
Senior Notes due 2004 of Arch Communications, Inc.(4)
4.2 Indenture, dated December 15, 1994, between Arch Communications, Inc.
(formerly known as USA Mobile Communications, Inc. II) and United
States Trust Company of New York, as Trustee, relating to the 14%
Senior Notes due 2004 of Arch Communications, Inc. (5)
4.3 Indenture, dated June 29, 1998, between Arch Communications, Inc. and
U.S. Bank Trust National Association, as Trustee, relating to the 12
3/4% Senior Notes due 2007 of Arch Communications, Inc. (3)
5.1** Opinion of Hale and Dorr LLP
8.1** Tax opinion of Hale and Dorr LLP
10.1 Second Amended and Restated Credit Agreement (Tranche A and Tranche C
Facilities), dated June 29, 1998, among Arch Paging, Inc., the
Lenders party thereto, The Bank of New York, Royal Bank of Canada and
Toronto Dominion (Texas), Inc. (3)
10.2 Second Amended and Restated Credit Agreement (Tranche B Facility),
dated June 29, 1998, among Arch Paging, Inc., the Lenders party
thereto. The Bank of New York, Royal Bank of Canada and Toronto
Dominion (Texas), Inc. (3)
10.3 Asset Purchase and Sale Agreement, dated April 10, 1998, among
OmniAmerica, Inc. and certain subsidiaries of Arch Communications
Group, Inc. (3)
10.4 Letter agreement, dated June 10, 1998, between Arch Communications
Group, Inc. and Motorola, Inc. (3)(6)
10.5** Debtors' Third Amended Joint Plan of Reorganization, dated as of
December 1, 1998, included as Annex C to the Proxy
Statement/Prospectus which is a part of this Registration Statement.
10.6 Commitment Letters to Purchase Stock and Warrants, dated as of August
18, 1998, by and among Arch Communications Group, Inc., MobileMedia
Communications Inc. and W. R. Huff Asset Management Co., L.L.C., The
Northwestern Mutual Life Insurance Company, Northwestern Mutual
Series Fund, Inc., Credit Suisse First Boston Corporation and
Whippoorwill Associates, Inc.
10.7 Amendments to Commitment Letters to Purchase Stock and Warrants,
dated as of September 3, 1998, by and among Arch Communications
Group, Inc., MobileMedia Communications, Inc. and W.R. Huff Asset
Management Co., L.L.C., The Northwestern Mutual Life Insurance
Company, Northwestern Mutual Series Fund, Inc., Credit Suisse First
Boston Corporation and Whippoorwill Associates, Inc.
10.8** Amendments to Commitment Letters to Purchase Stock and Warrants,
dated as of December 1, 1998, by and among Arch Communications Group,
Inc., MobileMedia Communications, Inc. and W.R. Huff Asset Management
Co., L.L.C., The Northwestern Mutual Life Insurance Company,
Northwestern Mutual Series Fund, Inc., Credit Suisse First Boston
Corporation and Whippoorwill Associates, Inc.
10.9 Form of Registration Rights Agreement among Arch Communications
Group, Inc. and W. R. Huff Asset Management Co., L.L.C., The
Northwestern Mutual Life Insurance Company, Northwestern Mutual
Series Fund, Inc., Credit Suisse First Boston Corporation and
Whippoorwill Associates, Inc.
</TABLE>
<PAGE>
<TABLE>
<C> <S>
10.10 Form of Registration Rights Agreement among Arch Communications
Group, Inc. and certain Stockholders.
10.11 Amendment No. 1 to Rights Agreement, dated June 29, 1998, between
Arch Communications Group, Inc. and the Bank of New York. (3)
10.12 Amendment No. 2 to Rights Agreement, dated as of August 18, 1998,
amending the Rights Agreement between Arch Communications Group,
Inc. and the Bank of New York.
10.13 Amendment No. 3 to Rights Agreement, dated September 3, 1998,
amending the Rights Agreement between Arch Communications Group,
Inc. and the Bank of New York.
10.14 Form of Warrant Agreement, between Arch Communications Group, Inc.
and the Bank of New York, as provided for in the First Amendment to
Agreement and Plan of Merger dated as of September 3, 1998, by and
among Arch Communications Group, Inc, Farm Team Corp. and
MobileMedia Communication Inc.
10.15 Commitment Letter, dated as of August 18, 1998, by and among Arch
Paging, Inc. and The Bank of New York, BNY Capital Markets, Inc.,
Toronto Dominion (Texas) Inc., TD Securities (USA) Inc., Royal Bank
of Canada and Barclays Bank PLC amending the Second and Amended
Restated Credit Agreements, dated June 29, 1998 (Tranche A, B and C
Facilities).
10.16 Bridge Commitment Letter, dated as of August 20, 1998, among Arch
Communications, Inc., Arch Communications Group, Inc. and The Bear
Stearns Companies, Inc., The Bank of New York, TD Securities (USA)
Inc. and the Royal Bank of Canada.
10.17 Amendment No. 1 to Registration Rights Agreement, dated August 19,
1998, amending the Registration Rights Agreement dated as of June
29, 1998 by and among Arch Communications Group, Inc. and the
Sandler Capital Partners IV, LP, Sandler Capital Partners IV, FTE
LP, South Fork Partners, The Georgica International Fund Limited,
Aspen Partners and Consolidated Press International Limited.
+10.18 Amended and Restated Stock Option Plan (8)
+10.19 Non-Employee Directors' Stock Option Plan (9)
+10.20 1989 Stock Option Plan, as amended (1)
+10.21 1995 Outside Directors' Stock Option Plan (10)
+10.22 1996 Employee Stock Purchase Plan (11)
+10.23 1997 Stock Option Plan (12)
+10.24 Deferred Compensation Plan for Nonemployee Directors (13)
+10.25 Form of Executive Retention Agreement by and between Messrs. Baker,
Daniels, Kuzia, Pottle and Saynor (13)
10.26 Stock Purchase Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Sandler Capital Partners IV, L.P.,
Sandler Capital Partners IV FTE, L.P., Harvey Sandler, John
Kornreich, Michael J. Marocco, Andrew Sandler, South Fork Partners,
the Georgica International Fund Limited, Aspen Partners and
Consolidated Press International Limited (3)
10.27 Registration Rights Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Sandler Capital Partners IV, L.P.,
Sandler Capital Partners IV FTE, L.P., Harvey Sandler, John
Kornreich, Michael J. Marocco, Andrew Sandler, South Fork Partners,
The Georgica International Fund Limited, Aspen Partners and
Consolidated Press International Limited (3)
10.28 Exchange Agreement, dated June 29, 1998, between Adelphia
Communications Corporation and Benbow PCS Ventures, Inc. (3)
10.29 Promissory Note, dated June 29, 1998, in the Principal amount of
$285,015, issued by Benbow PCS Ventures, Inc. to Lisa-Gaye Shearing
(3)
10.30 Guaranty, dated June 29, 1998, given by Arch Communications Group,
Inc. to Adelphia Communications Corporation (3)
10.31 Guaranty, dated June 29, 1998, given by Arch Communications Group,
Inc. to Lisa-Gaye Shearing (3)
10.32 Registration Rights Agreement, dated June 29, 1998, among Arch
Communications Group, Inc., Adelphia Communications Corporation and
Lisa-Gaye Shearing (3)
21.1** Subsidiaries of the Registrant
23.1** Consent of Hale and Dorr LLP (contained in its opinion filed as
Exhibit 5.1)
23.2** Consent of Arthur Andersen LLP
23.3** Consent of Ernst & Young LLP
23.4** Consent of Wilkinson, Barker, Knauer & Quinn, LLP
23.5** Consent of Wiley, Rein & Fielding
24.1 Power of Attorney (included on signature page to this Registration
Statement)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
27.1 Financial Data Schedule (7)
99.1 Form of Subscription Certificate and related documents
99.2** Form of Proxy for the Common Stock of Arch for Arch Annual Meeting
</TABLE>
--------
* To be filed by amendment.
** Filed herewith.
+ Identifies exhibits constituting a management contract or compensation
plan.
(1) Incorporated by reference from the Registration Statement on Form S-3
(File No. 333-542) of Arch Communications Group, Inc.
(2) Incorporated by reference from the Current Report on Form 8-K of Arch
Communications Group, Inc. dated October 13, 1995 and filed on October
24, 1995.
(3) Incorporated by reference from the Current Report on Form 8-K of Arch
Communications Group, Inc. dated June 26, 1998 and filed on July 23,
1998.
(4) Incorporated by reference from the Registration Statement on Form S-1
(File No. 33-72646) of Arch Communications, Inc.
(5) Incorporated by reference from the Registration Statement on Form S-1
(File No. 33-85580) of Arch Communications, Inc.
(6) A Confidential Treatment Request has been filed with respect to
portions of this exhibit so incorporated by reference.
(7) Incorporated by reference from the Quarterly Report on Form 10-Q of
Arch Communications Group, Inc. for the quarter ended September 30,
1998.
(8) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group. Inc. (then known as USA Mobile Communications
Inc. II) for the fiscal year ended December 31, 1994.
(9) Incorporated by reference from the Registration Statement on Form S-4
(File No. 33-83648) of Arch (then known as USA Mobile Communications
Inc. II).
(10) Incorporated by reference from the Registration Statement on Form S-3
(File No. 33-87474) of Arch Communications Group, Inc.
(11) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1995.
(12) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1996.
(13) Incorporated by reference from the Annual Report on Form 10-K of Arch
Communications Group, Inc. for the fiscal year ended December 31,
1997.
<PAGE>
EXHIBIT 2.3
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Second Amendment, dated as of December 1, 1998 (this "Amendment"), to
the Agreement and Plan of Merger, dated as of August 18, 1998 (as amended by the
First Amendment thereto dated September 3, 1998, the "Merger Agreement"), by and
among Arch Communications Group, Inc. (the "Buyer"), Farm Team Corp. (the
"Merger Subsidiary"), MobileMedia Corporation (the "Parent") and MobileMedia
Communications, Inc. (the "Company"). Terms used herein with initial capital
letters that are not otherwise defined shall have the meanings ascribed to such
terms in the Merger Agreement.
PRELIMINARY STATEMENT
A. The Buyer, the Merger Subsidiary, the Parent and the Company have
entered into the Merger Agreement.
B. The Buyer, the Merger Subsidiary, the Parent and the Company desire to
amend the Merger Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Recital C. Recital C of the Merger Agreement (as heretofore amended)
---------
is hereby further amended to delete the reference to "Debtor's Second Amended
Joint Plan of Reorganization" and replace such reference with a reference to
"Debtors' Third Amended Joint Plan of Reorganization" and to delete the
reference to "August 20, 1998" and replace such reference with a reference to
"December 2, 1998".
2. Recital E. Recital E of the Merger Agreement (as heretofore amended)
---------
is hereby further amended to read in its entirety as follows:
E. In connection with the Merger (as defined in Section 1.1) and as part
of the Amended Plan, the Buyer intends to conduct the Rights Offering (as
defined in Section 4.20), in which it will issue to holders of certain
Allowed Claims transferable rights ("Rights") to purchase shares of Common
Stock, $0.01 par value per share, of the Buyer ("Buyer Common Stock") or
shares of Buyer Class B Common Stock (as defined in Section 3.1(b)), if
applicable. Contemporaneously with the execution and delivery of this
Agreement, certain holders of Allowed Claims (the "Standby Purchasers") are
making certain commitments in connection with the Rights Offering (as the
same may be amended from time to time, the "Standby Purchase Commitments"),
copies of which are attached as Exhibits G, H, I, J, K and L hereto. In
partial consideration for the Standby Purchase Commitments, the Buyer will
issue to the Standby Purchasers warrants to purchase shares of Buyer Common
Stock ("Buyer Participation Warrants"), such Buyer Participation Warrants
to be issued pursuant to a warrant agreement in the form attached hereto as
Exhibit B-1 (the "Buyer Participation Warrant Agreement"), as provided in
the Standby Purchase Commitments. In addition, in connection with the
Standby Purchase
<PAGE>
Commitments, the Buyer and the Standby Purchasers will enter into a
registration rights agreement in the form attached hereto as Exhibit C (as
---------
the same may be amended from time to time, the "Registration Rights
Agreement").
3. Recital F. Recital F of the Merger Agreement (as heretofore amended)
---------
is hereby further amended to read in its entirety as follows:
F. The Buyer will conduct the Stockholder Rights Offering (as defined in
Section 4.22), in which it will issue to holders of Buyer Common Stock and
Buyer's Series C Convertible Preferred Stock, $.01 par value per share (the
"Buyer Preferred Stock" and, together with the Buyer Common Stock, the
"Buyer Stock"), as of a record date to be determined by the Board of
Directors of the Buyer (the "Buyer Record Date"), such holders being
referred to herein as the "Stockholder Rights Holders", non-transferable
rights ("Stockholder Rights") (except that, at the Buyer's election,
Stockholder Rights will transfer with the underlying shares in respect of
which Stockholder Rights are distributed) to acquire an aggregate of
44,893,166 shares of Buyer Common Stock. In connection therewith,
immediately following the Merger, the Buyer will distribute to the
stockholders of the Buyer Participation Warrants to purchase an aggregate
number of shares of Buyer Common Stock equal to the excess of 44,893,166
over the number of shares of Buyer Common Stock issued upon exercise of
Stockholder Rights issued in the Stockholder Rights Offering (such
distribution being referred to herein as the "Buyer Distribution").
4. Section 1.3. Section 1.3 of the Merger Agreement (as heretofore
-----------
amended) is hereby further amended to read in its entirety as follows:
1.3 Actions at the Closing. At the Closing, (a) the Parent and the
----------------------
Company shall deliver to the Buyer and the Merger Subsidiary the various
certificates, instruments and documents referred to in Section 5.2, (b) the
Buyer and the Merger Subsidiary shall deliver to the Company the various
certificates, instruments and documents referred to in Section 5.3, (c) the
Buyer shall file with the Secretary of State of the State of Delaware the
Buyer Charter Amendment (as defined in Section 4.12), (d) the Company and
the Merger Subsidiary shall immediately thereafter file with the Secretary
of State of the State of Delaware the Certificate of Merger, (e)(i) the
Buyer shall deliver (A) to the Pre-Petition Agent, for the benefit of the
Pre-Petition Lenders, $479,000,000 in immediately available funds, (B) to
the Company (or, from and after the Effective Time, the Surviving
Corporation) immediately available funds when and as required in amounts
sufficient to pay allowed administrative and priority claims and expenses
of the Debtors, whether allowed prior to or after the Effective Time, as
set forth in the Amended Plan (collectively, the "Plan Cash"), and (C) to a
bank trust company or other entity reasonably satisfactory to the Company
and the Buyer appointed by the Buyer to act as the exchange agent (the
"Exchange Agent") pursuant to Section 1.6(a), certificates representing
14,344,969 shares of Buyer Common Stock (the "Plan Shares") to be
distributed as contemplated by Section 1.6(b), (ii) the Buyer shall issue
--------------
the shares of Buyer Common Stock (and Buyer Class B Common Stock, if
applicable) purchased through the exercise of the Rights (with the number
of such shares not to exceed 108,500,000 in the
-2-
<PAGE>
aggregate), and (iii) the Buyer shall issue the shares of Buyer Common
Stock purchased through the exercise of Stockholder Rights (with the number
of such shares not to exceed 44,893,166 in the aggregate) and the Buyer
shall effect the Buyer Distribution.
5. Section 1.7. Section 1.7 of the Merger Agreement (as heretofore
-----------
amended) is hereby further amended to read in its entirety as follows:
1.7 Distribution to Holders of Buyer Common Stock.
---------------------------------------------
(a) The Buyer shall conduct the Stockholder Rights Offering in accordance
with Section 4.22, and the Buyer shall, as soon as practicable after the
occurrence of the Effective Time, declare and make the Buyer Distribution.
(b) Notwithstanding the foregoing, no fractional Buyer Participation
Warrants shall be issued in the Buyer Distribution; in lieu thereof,
fractional Buyer Participation Warrants that would otherwise be issued in
the Buyer Distribution will be rounded up or down to the nearest whole
number of Buyer Participation Warrants.
6. Section 3.1(b). Section 3.1(b) of the Merger Agreement (as heretofore
--------------
amended) is hereby further amended to read in its entirety as follows:
(b) Each of the Buyer and the Merger Subsidiary has all requisite power
and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement by the Buyer and the Merger Subsidiary and,
subject to the approval of the Buyer Charter Amendment (as defined in
Section 4.12) and the Buyer Share Issuance (as defined below in this
Section 3.1(b)) by the stockholders of the Buyer, the performance of this
Agreement and the consummation of the transactions contemplated hereby by
the Buyer and the Merger Subsidiary have been duly and validly authorized
by all necessary corporate action on the part of the Buyer and the Merger
Subsidiary. This Agreement has been duly and validly executed and delivered
by the Buyer and the Merger Subsidiary and constitutes a valid and binding
obligation of the Buyer and the Merger Subsidiary, enforceable against the
Buyer and the Merger Subsidiary in accordance with its terms. For purposes
of this Agreement, "Buyer Share Issuance" means the issuance by the Buyer
of shares of its capital stock as contemplated by this Agreement and the
Amended Plan, including (i) the issuance of the Plan Shares as contemplated
by the Merger Agreement and the Amended Plan, (ii) the issuance of shares
of Buyer Common Stock and, if applicable, shares of Class B Common Stock,
par value $0.01 per share, of the Buyer ("Buyer Class B Common Stock")
having the terms specified in the Buyer Charter Amendment upon exercise of
Rights issued pursuant to the Rights Offering or issued to the Standby
Purchasers (or their assignees or persons in substitution therefor)
pursuant to the Standby Purchase Commitments in connection with the Rights
Offering, (iii) the issuance of shares of Buyer Common Stock upon the
exercise of Stockholder Rights issued pursuant to the Stockholder Rights
Offering, and (iv) the issuance of the Buyer Participation Warrants by the
Buyer (x) to the Standby Purchasers in connection with the Rights Offering
and (y) pursuant to the Buyer Distribution, and the issuance of shares of
-3-
<PAGE>
Buyer Common Stock upon exercise of any of the foregoing Buyer
Participation Warrants.
7. Section 3.2(e). Section 3.2(e) of the Merger Agreement (as heretofore
--------------
amended) is hereby further amended to read in its entirety as follows:
(e) (i) The Plan Shares to be issued and distributed as contemplated by
Sections 1.3(e) and 1.6 of this Agreement, (ii) the shares of Buyer Common
Stock to be issued and distributed pursuant to the Stockholder Rights
Offering, (iii) the shares of Buyer Common Stock and the shares of Buyer
Class B Common Stock, if applicable, to be issued and delivered pursuant to
the Rights Offering (as defined in Section 4.20(a)) or as contemplated by
the Standby Purchase Commitments, (iv) the shares of Buyer Common Stock to
be issued and delivered upon conversion of shares of Buyer Class B Common
Stock, if applicable, when so converted in accordance with the Buyer
Charter Amendment (as defined in Section 4.12), (v) the Buyer Participation
Warrants to be issued and delivered as contemplated by the Standby Purchase
Commitments and pursuant to the Buyer Distribution, in either case, when so
issued and distributed or delivered, as the case may be, and (vi) the
shares of Buyer Common Stock to be issued and delivered upon exercise of
Buyer Participation Warrants, when issued, paid for and delivered as
provided in the Buyer Participation Warrant Agreement, will all be duly
authorized, validly issued, fully paid, nonassessable and free of
preemptive rights.
8. Section 3.23(b). Section 3.23(b) of the Merger Agreement (as
---------------
heretofore amended) is hereby further amended to read in its entirety as
follows:
(b) The Board of Directors of the Buyer has approved this Agreement, the
Merger and the Amended Plan together with the transactions contemplated
hereby and thereby (including without limitation the acquisition by the
Standby Purchasers of Buyer Participation Warrants and Buyer Common Stock
or Buyer Class B Common Stock, if applicable, pursuant to this Agreement,
the Amended Plan and the Standby Purchase Commitments, or of Buyer Common
Stock pursuant to the Buyer Participation Warrants), including for purposes
of Section 203 of the DGCL.
9. Section 4.4(b). Section 4.4(b) of the Merger Agreement is hereby
--------------
amended (i) to delete the reference to "August 20, 1998" and replace such
reference with a reference to "December 2, 1998" and (ii) to delete the
reference to "August 24, 1998" and replace such reference with a reference to
"December 3, 1998".
10. Section 4.9. Section 4.9 of the Merger Agreement (as heretofore
-----------
amended) is hereby further amended to read in its entirety as follows:
4.9 Nasdaq National Market Quotation. The Buyer shall use its best
--------------------------------
efforts to have the shares of Buyer Common Stock (including all such shares
issuable upon conversion of the Buyer Class B Common Stock and upon
exercise of the Buyer Participation Warrants) to be issued as contemplated
by the Amended Plan and this Agreement approved for quotation on the Nasdaq
National Market prior to the Closing.
-4-
<PAGE>
11. Section 4.20(a). Section 4.20(a) of the Merger Agreement (as
---------------
heretofore amended) is hereby further amended to read in its entirety as
follows:
(a) As specified in the Amended Plan, the Buyer will offer (the "Rights
Offering") to the holders of certain Allowed Claims as specified in the
Amended Plan, pursuant to the Rights, the opportunity to purchase, for
consideration of $2.00 per share in cash (the "Subscription Price"), an
aggregate of 108,500,000 shares of Buyer Common Stock and Buyer Class B
Common Stock, if applicable ("Rights Shares"). The Rights Offering will be
made substantially on the terms set forth in Schedule III hereto.
12. Section 4.22. Section 4.22 of the Merger Agreement is hereby amended
------------
to read in its entirety as follows:
4.22 Stockholder Rights Offering. The Buyer will offer (the "Stockholder
---------------------------
Rights Offering") to the Stockholder Rights Holders, pursuant to the
Stockholder Rights, the opportunity to purchase, for the Subscription
Price, an aggregate of 44,893,166 shares of Buyer Common Stock. The
Stockholder Rights Offering will be made substantially on the terms set
forth in Schedule IV hereto.
13. Section 5.1(g). Section 5.1(g) of the Merger Agreement (as heretofore
--------------
amended) is hereby further amended to read in its entirety as follows:
(g) the shares of Buyer Common Stock (including all such shares issuable
upon conversion of the Buyer Class B Common Stock and exercise of the Buyer
Participation Warrants) to be issued as contemplated by the Amended Plan
and this Agreement shall have been approved for quotation on the Nasdaq
National Market;
14. Section 6.1(c). Section 6.1(c) of the Merger Agreement is hereby
--------------
amended to read in its entirety as follows:
(c) after June 30, 1999, the Buyer may terminate this Agreement by giving
written notice to the Company if the Closing shall not have occurred on or
before such date (unless the failure results primarily from a breach by the
Buyer of any representation, warranty or covenant contained in this
Agreement);
15. Section 6.1(d). Section 6.1(d) of the Merger Agreement is hereby
--------------
amended to read in its entirety as follows:
(d) after June 30, 1999, the Company may terminate this Agreement by
giving written notice to the Buyer if the Closing shall not have occurred
on or before such date (unless the failure results primarily from a breach
by the Company of any representation, warranty or covenant contained in
this Agreement);
16. New Section 8.18. Article VIII of the Merger Agreement is hereby
----------------
amended to add the following Section 8.18 at the end thereof:
-5-
<PAGE>
8.18 Reverse Stock Split. Notwithstanding anything to the contrary herein
-------------------
contained, if the Buyer effects the reverse stock split contemplated by
Section 4.5 of the Buyer Disclosure Schedule (the "Reverse Stock Split")
prior to or simultaneously with the Closing, (a)(i) the number of Plan
Shares, (ii) the number of Rights Shares, and (iii) the number of shares of
Buyer Common Stock issuable upon exercise of Stockholder Rights or Buyer
Participation Warrants issued pursuant to the Buyer Distribution will be
adjusted, in each case, to a number equal to the product of (x) the number
provided therefor herein and (y) the Adjustment Fraction and (b) the
Subscription Price will be adjusted to a price equal to the product of (x)
$2.00 and (y) the Inverse Adjustment Fraction. For purposes of this
Section 8.18, the term "Adjustment Fraction" means a fraction, the
numerator of which is the total number of shares of Buyer Common Stock
issued and outstanding immediately following the effectiveness of the
Reverse Stock Split and the denominator of which is the total number of
shares of Buyer Common Stock issued and outstanding immediately prior to
the effectiveness of the Reverse Stock Split (provided, however, that, if
-------- -------
the Reverse Stock Split occurs simultaneously with the Closing, shares of
Buyer Common Stock issued in connection with the Closing will not be
treated as outstanding for purposes of determining the numerator or
denominator of such fraction), and the term "Inverse Adjustment Fraction"
means a fraction that is the inverse of the Adjustment Fraction.
17. Amended Exhibit A. Exhibit A to the Merger Agreement (as heretofore
-----------------
amended) is hereby further amended to read in its entirety as Exhibit A hereto.
---------
18. Deletion of Exhibit B. Exhibit B to the Merger Agreement is hereby
---------------------
deleted in its entirety.
19. Amended Exhibit F. Exhibit F to the Merger Agreement (as heretofore
-----------------
amended) is hereby further amended to read in its entirety as Exhibit F hereto.
---------
20. Amended Exhibit B-1. Exhibit B-1 to the Merger Agreement (as
-------------------
heretofore amended) is hereby further amended to read in its entirety as Exhibit
-------
B-1 hereto.
- ---
21. Deletion of Schedule II. Schedule II to the Merger Agreement is
-----------------------
hereby deleted in its entirety.
22. Amended Schedule III. Schedule III to the Merger Agreement (as
--------------------
heretofore amended) is hereby further amended to read in its entirety as
Schedule III hereto.
- ------------
23. Amended Schedule IV. Schedule IV to the Merger Agreement (as
-------------------
heretofore amended) is hereby further amended to read in its entirety as
Schedule IV hereto.
- -----------
24. Supplement to Buyer Disclosure Schedule. Parent and the Company
---------------------------------------
hereby consent to the supplement to Section 4.5 of the Buyer Disclosure Schedule
attached as Annex I hereto.
-------
-6-
<PAGE>
25. Continuation of Merger Agreement. Except as specifically amended
--------------------------------
hereby, the Merger Agreement shall continue in full force and effect and is
hereby ratified and confirmed in all respects. From and after the execution and
delivery of this Amendment, each reference in the Merger Agreement to "this
Agreement," "hereunder," "hereof," "herein" and words of like import shall be
deemed to refer to the Merger Agreement as amended by this Amendment.
26. Governing Law. This Amendment shall be governed by and construed in
-------------
accordance with the internal laws (and not the law of conflicts) of the State of
Delaware.
27. Counterparts. This Amendment may be executed in one or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-7-
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first above written.
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. Roy Pottle
_______________________
Name: J. Roy Pottle
Title: Executive Vice President and
Chief Financial Officer
FARM TEAM CORP.
By: /s/ J. Roy Pottle
_______________________
Name: J. Roy Pottle
Title: Executive Vice President and
Chief Financial Officer
SUBJECT TO THE RECEIPT OF THE CONFIRMATION ORDER
FROM THE BANKRUPTCY COURT WITH RESPECT TO THE
AMENDED PLAN:
MOBILEMEDIA CORPORATION
By: /s/ Joseph A. Bondi
_______________________
Name: Joseph A. Bondi
Title: Chairman - Restructuring
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ Joseph A. Bondi
_______________________
Name: Joseph A. Bondi
Title: Chairman - Restructuring
-8-
<PAGE>
EXHIBIT 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 . fax 617-526-5000
December 3, 1998
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, MA 01581
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement
on Form S-4 (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of (i) up to 44,893,166
rights to acquire (the "Arch Stockholder Rights") shares of Common Stock, $.01
par value per share (the "Common Stock"), of Arch Communications Group, Inc.,
a Delaware corporation (the "Company"), (ii) up to 44,893,166 warrants to
purchase Common Stock of the Company that may be issued to the Company's
stockholders pursuant to the Agreement and Plan of Merger by and among the
Company, Farm Team Corp., MobileMedia Corporation and MobileMedia
Communications, Inc. dated as of August 18, 1998, and amended as of September
3, 1998 and as of December 1, 1998 (as amended, the "Merger Agreement") in
lieu of the foregoing Arch Stockholder Rights to the extent that such Arch
Stockholder Rights are not exercised and (iii) up to 44,893,166 shares of the
Company's Common Stock issuable upon exercise of such Arch Stockholder Rights
or Warrants issued in lieu thereof (collectively, the "Securities").
We are acting as counsel for the Company in connection with the issuance by
the Company of the Securities. We have examined signed copies of the
Registration Statement as filed with the Commission. We have also examined and
relied upon the Merger Agreement, minutes of meetings of the Board of
Directors of the Company as provided to us by the Company, record books of the
Company as provided to us by the Company, the Certificate of Incorporation and
By-Laws of the Company, each as restated and/or amended to date, and such
other documents as we have deemed necessary for purposes of rendering the
opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents
submitted to us as copies, the authenticity of the originals of such latter
documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the issuance
of the Securities in accordance with the Merger Agreement, to register and
qualify the Securities for sale under all applicable state securities or "blue
sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America. To the extent that any other laws govern the matters as to which we
are opining herein, we have assumed that such laws are identical to the state
laws of the Commonwealth of Massachusetts, and we are expressing no opinion
herein as to whether such assumption is reasonable or correct.
Based upon and subject to the foregoing, we are of the opinion that, subject
to the approval of the Certificate of Amendment to the Company's Restated
Certificate of Incorporation (in the form attached as Exhibit 3.5 to the
Registration Statement) by the stockholders of the Company and the filing of
such Certificate of Amendment with the Secretary of State of the State of
Delaware, the Securities to be issued by the Company will be duly authorized
for issuance and, when such Securities are issued in accordance with the terms
and conditions of the Merger Agreement, such Securities will be validly
issued, fully paid and nonassessable.
<PAGE>
It is understood that this opinion is to be used only in connection with the
issuance of the Securities while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This
opinion is based upon currently existing statutes, rules, regulations and
judicial decisions, and we disclaim any obligation to advise you of any change
in any of these sources of law or subsequent legal or factual developments
which might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of
our name therein and in the related Proxy Statement/Prospectus under the
caption "Legal Matters." In giving such consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
Hale and Dorr LLP
<PAGE>
EXHIBIT 8.1
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
December 15, 1998
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, Massachusetts 01581
Re: Registration Statement on Form S-4 and Proxy Statement/
Prospectus of Arch Communications Group, Inc.
Ladies and Gentlemen:
We are counsel to Arch Communications Group, Inc., a Delaware Corporation
("Arch") and have acted as such in connection with the filing of a
Registration Statement on Form S-4 (File No. 333-63519) (the "Registration
Statement") under the Securities and Exchange Act of 1933, as amended, which
includes the Joint Proxy Statement and Prospectus relating to the Agreement
and Plan of Merger dated as of August 18, 1998, as amended as of September 3,
1998 and as of December 1, 1998 (the "Merger Agreement"), by and among Arch,
Farm Team Corp., a Delaware corporation and wholly owned subsidiary of Arch
("Farm Team"), MobileMedia Corporation, a Delaware corporation ("Parent")
which is currently operating as a debtor-in-possession under Chapter 11 of the
United States Bankruptcy Code ("Chapter 11"), and MobileMedia Communications,
Inc., a Delaware corporation and wholly owned subsidiary of Parent which is
also currently operating as a debtor-in-possession under Chapter 11 ("MMC"
and, together with its subsidiaries, "MobileMedia"); and a related Third
Amended Joint Plan of Reorganization of Parent and MobileMedia under Chapter
11 dated as of December 1, 1998 (the "Amended Plan"). Pursuant to the Merger
Agreement, MMC will merge with and into Farm Team (the "Merger"), and Arch
will distribute to the holders of Arch Common Stock and Series C Preferred
Stock, Arch Stockholder Rights and Arch Participation Warrants (collectively,
the "Arch Rights and Warrants"). Except as otherwise provided, capitalized
terms not defined herein have the meanings set forth in the Registration
Statement. All section references, unless otherwise indicated, are to the
United States Internal Revenue Code of 1986, as amended (the "Tax Code").
We have examined the Registration Statement, the Merger Agreement and the
exhibits thereto, the Amended Plan and the exhibits thereto, and such other
documents as we considered relevant to our analysis. In our examination of
documents, we have assumed the authenticity of original documents, the
accuracy of copies, the genuineness of signatures, and the legal capacity of
signatories.
The conclusions expressed herein represent our judgment as to the proper
treatment of certain aspects of the Merger and the distribution of Arch Rights
and Warrants to holders of Arch Common Stock and Series C Preferred Stock (the
"Distribution") under the income tax laws of the United States based upon the
Tax Code, Treasury Regulations, case law, and rulings and other pronouncements
of the Internal Revenue Service (the "IRS") as in effect on the date of this
opinion. No assurances can be given that such laws will not be amended or
otherwise changed prior to the Effective Time, or at any other time, or that
such changes will not affect the conclusions expressed herein. Nevertheless,
we undertake no responsibility to advise you of any developments after the
date hereof in the application or interpretation of the income tax laws of the
United States.
<PAGE>
Our opinion represents our best judgment of how a court would decide if
presented with the issues addressed herein and is not binding upon either the
IRS or any court. Thus no assurances can be given that a position taken in
reliance on our opinion will not be challenged by the IRS or rejected by a
court.
This opinion addresses only the specific United States federal income tax
consequences of the Merger and the Distribution set forth below, and does not
address any other federal, state, local, or foreign income, estate, gift,
transfer, sales, use, or other tax consequences that may result from the
Merger, the Distribution, or any other transaction (including any transaction
undertaken in connection with the Merger or the Distribution). We express no
opinion regarding the tax consequences of the Merger or the Distribution to
certain taxpayers that are subject to special tax rules such as foreign
persons, banks and other financial institutions, tax-exempt entities, dealers
and traders in securities and insurance companies.
As more fully described below, the taxability of the Distribution will be
dependent upon various factual determinations which cannot be made at this
time and as to which the interpretation of various provisions of the tax law
is uncertain.
The distribution of the Arch Rights and Warrants to holders of Arch Common
Stock will be a taxable distribution under Section 305(b)(2) of the Tax Code
if it has the effect of the receipt of money or other property by some Arch
shareholders and an increase in the proportionate interests of other Arch
shareholders in the assets or earnings and profits of Arch (the "Taxable
Effect"). For this purpose, the payment of interest to a holder of Arch's
outstanding 6 3/4% Convertible Debentures is treated as a distribution of
money or other property to an Arch shareholder. The distribution of the Arch
Rights and Warrants to holders of Arch Common Stock will be considered to have
the Taxable Effect unless a "full adjustment" in the conversion price of the
Convertible Debentures to reflect such distribution is made. Under the terms
of the Convertible Debentures, the $16.75 conversion price will be adjusted
only if the exercise price under the Arch Rights Offering is less than the
market value of Arch Common Stock on the record date for the Arch Rights
Offering.
Due to the factual uncertainty regarding the market price per share of Arch
Common Stock relative to the exercise price of the Arch Stockholder Rights on
the record date for the Arch Rights Offering and on the date of the
distribution of the Arch Rights and Warrants, it is not possible to ascertain
whether the conversion price of the Convertible Debentures will be adjusted.
Furthermore, as a matter of law, it is unclear when a "full adjustment" to the
conversion price of outstanding convertible debentures is required, and, if
required, what constitutes a "full adjustment," in order to avoid the Taxable
Effect by reason of a distribution of rights to holders of common stock to
acquire such stock.
Based upon and subject to the foregoing, and subject to the other
qualifications and limitations stated herein, we are of the opinion that:
1. No gain or loss will be recognized by Arch or Arch stockholders as a
result of the Merger;
2. If the conversion price of the Convertible Debentures is required to
be adjusted in order to avoid the Taxable Effect and is not adjusted, or if
the conversion price is adjusted but the adjustment does not constitute a
"full adjustment," then the distribution of the Arch Rights and Warrants to
holders of Arch Common Stock will be a taxable distribution to holders of
Arch Common Stock under Section 305(b)(2) of the Tax Code;
3. If the conversion price of the Convertible Debentures is not required
to be adjusted in order to avoid the Taxable Effect, or if the conversion
price is adjusted and the adjustment constitutes a "full adjustment," then
the distribution of the Arch Rights and Warrants to holders of Arch Common
Stock will be a nontaxable distribution to holders of Arch Common Stock
under Section 305(a) of the Tax Code; and
4. The distribution of the Arch Rights and Warrants to holders of Series
C Preferred Stock will be taxable as a distribution with respect to
preferred stock under Section 305(b)(4) of the Tax Code.
2
<PAGE>
This opinion is intended solely for the purpose of inclusion as an exhibit
to the Registration Statement. It may not be relied upon for any other purpose
or by any other person or entity other than your stockholders on or before the
Effective Time, and may not be made available to any other person or entity
without our prior written consent. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the use of our name
therein and in the related Prospectus under the caption "The MobileMedia
Proposal--Material Federal Income Tax Consequences". In giving this consent,
however, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities and Exchange Act of
1933, as amended.
Very truly yours,
/s/ Hale and Dorr LLP
-------------------------------------
Hale and Dorr LLP
3
<PAGE>
EXHIBIT 21.1
LIST OF SUBSIDIARIES
<TABLE>
<CAPTION>
SUBSIDIARY STAT OF INCORPORATION DOES BUSINESS AS
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
3057011 Canada, Inc. Ontario, Canada
Answer Iowa, Inc. Iowa Arch Paging
Arch Canada, Inc. Ontario, Canada
Arch Capitol District, Inc. New York Arch Paging
Arch Communications Services, Inc. New York Arch Paging
Arch Connecticut Valley, Inc. Massachusetts Arch Paging
Arch Michigan, Inc. Delaware Arch Paging
Arch Paging, Inc. Delaware Arch Paging
Arch Southeast Communications, Inc. Delaware Arch Paging
Arch Communications, Inc. Delaware Arch Paging
Becker Beeper, Inc. Illinois Arch Paging
The Beeper Company of America, Inc. Colorado Arch Paging
Benbow Investments, Inc. Delaware
Per-Com Wireless Enterprises, Inc. Ontario, Canada
The Westlink Company Delaware Arch Paging
The Westlink Paging Company of New New Mexico Arch Paging
Mexico, Inc.
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use in this
registration statement of our report dated February 9, 1998 (except with
respect to the matters discussed in Notes 3 and 4, as to which the date is
June 29, 1998) included herein and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
December 11, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated July 31, 1998, with respect to the financial
statements of MobileMedia Communications, Inc. as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997,
included in the Proxy Statement/Prospectus of Arch Communications Group, Inc.
that is made a part of Amendment No. 3 to the Registration Statement (Form S-4
No. 333-63519) and the registration of shares of its common stock, stock
purchase warrants and rights to purchase such stock and warrants.
/s/ Ernst & Young LLP
MetroPark, New Jersey
December 9, 1998
<PAGE>
EXHIBIT 23.4
CONSENT
We hereby consent to the reference to our firm under the heading "Experts"
in the Prospectus constituting part of the Registration Statement on Form S-4
(File Number 333-63519) of Arch Communications Group, Inc. As noted therein,
our review and input only pertains to FCC matters unique to Arch included in
the description of the regulatory requirements under the Communications Act
and the Telecommunications Act of 1996, and the regulations thereunder, set
forth under "Risk Factors--Risks Common to Arch and MobileMedia--Government
Regulation, Foreign Ownership and Possible Redemption" and "Industry
Overview--Regulation." Stockholders of Arch should not rely on Wilkinson,
Barker, Knauer & Quinn with respect to any other matters or any other sections
of the document.
Wilkinson, Barker, Knauer & Quinn,
LLP
/s/ Kenneth D. Patrich
By: _________________________________
KENNETH D. PATRICH
Date: December 9, 1998
<PAGE>
EXHIBIT 23.5
CONSENT
We hereby consent to the reference to our firm under the heading "Experts"
in the Prospectus constituting part of Amendment No. 3 to the Registration
Statement on Form S-4 (File Number 333-63519) of Arch Communications Group,
Inc. As noted therein, our review and input has only pertained to FCC matters
unique to MobileMedia included in the description of the regulatory
requirements under the Communications Act and the regulations thereunder set
forth under "Risk Factors--Risks Common to Arch and MobileMedia--Government
Regulation, Foreign Ownership and Possible Redemption" and "Industry
Overview--Regulation." Stockholders of Arch should not rely on Wiley, Rein &
Fielding with respect to any other matters or any other sections of the
document.
WILEY, REIN & FIELDING
/s/ Nancy J. Victory
By: _________________________________
Nancy J. Victory
Dated: December 9, 1998
<PAGE>
Exhibit 99.2
ARCH COMMUNICATIONS GROUP, INC. PROXY
1800 West Park Drive, Suite 250
Westborough, Massachusetts 01581
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JANUARY , 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, having received notice of the Special Meeting of
Stockholders (the "Special Meeting") of Arch Communications Group, Inc.
("Arch") to be held on January , 1998 at 10:00 a.m., local time, at the
offices of Hale and Dorr LLP, 26th Floor, 60 State Street, Boston,
Massachusetts 02109, hereby appoints C. Edward Baker, Jr., J. Roy Pottle,
Garry B. Watzke and David A. Westenberg, and each of them, the proxies of the
undersigned with power of substitution to each of them, to vote all shares of
Arch with the undersigned is entitled to vote at the Special Meeting and any
adjournments or postponements thereof.
In their discretion, the proxies are authorized to vote upon such other
matters as may properly come before the Special Meeting or any adjournments or
postponements thereof.
The shares represented by this proxy will be voted as directed by the
undersigned. IF NO DIRECTION IS GIVEN WITH RESPECT TO THE PROPOSAL ON THE
REVERSE SIDE, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL. Attendance of the
undersigned at the Special Meeting or any adjournment thereof will not be
deemed to revoke this proxy unless the undersigned shall vote at the Special
Meeting, revoke this proxy in writing prior to the Special Meeting or grant a
subsequent proxy.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE FOLLOWING PROPOSALS.
Please mark your votes as indicated in this example [X]
1.To approve the MobileMedia Proposal as described in the Proxy
Statement/Prospectus.
[_] FOR [_] AGAINST [_] ABSTAIN
2.To approve an amendment to the Company's Restated Certificate of
Incorporation to increase the number of authorized shares of Common Stock from
75,000,000 shares to 365,000,000 shares, a portion of which will be Class B
Common Stock.
[_] FOR [_] AGAINST [_] ABSTAIN
3.To approve the amendment to the Company's Restated Certificate of
Incorporation to effect a reverse split of the Company's Common Stock.
[_] FOR [_] AGAINST [_] ABSTAIN
4.To approve an amendment to the Company's 1997 Stock Option Plan to increase
the number of shares of the Company's Common Stock issuable thereunder from
1,500,000 to 6,000,000.
[_] FOR [_] AGAINST
5.To approve the Company's 1999 Employee Stock Purchase Plan.
[_] FOR
[_] AGAINST [_] ABSTAIN
[_] ABSTAIN
<PAGE>
Please sign exactly as your name appears
on your stock certificate(s). When
shares are held by joint owners, both
should sign. When signing as attorney,
executor, administrator, trustee or
guardian, please give full title as
such. If a corporation name by an
authorized officer. If a partnership,
please sign in full partnership name by
authorized person.
Dated: , 1998
-----------------------------------------
Please print name of stockholder
-----------------------------------------
Please sign here
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, YOU ARE URGED TO
COMPLETE, DATE, SIGN AND RETURN THIS PROXY IN THE ENCLOSED POSTAGE PREPAID
ENVELOPE.
