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EXHIBIT 2.4
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 26, 1998 (this "Agreement"), by
and among AT&T Wireless Services, Inc., a Delaware corporation ("Wireless"),
and Page America Group, Inc. ("Stockholder").
WHEREAS, Metrocall, Inc. ("MC") and Wireless have entered into a Stock
Purchase Agreement of even date herewith (the "Stock Purchase Agreement"),
pursuant to which Wireless and certain of its affiliates have agreed to sell
their paging and messaging business and a 50KHz/50KHz Narrowband Personal
Communications Service license to MC upon the terms and subject to the
conditions set forth therein (the "Transaction");
WHEREAS, as of the date hereof, Stockholder is the beneficial owner
of, and has the sole right to vote and dispose of, the number of shares of the
common stock, par value $.01 per share, of MC (the "MC Shares") which is set
forth opposite such Stockholder's name on the signature page hereof;
WHEREAS, the issuance of Series C Convertible Preferred Stock of MC as
part of the consideration for the Transaction (the "Convertible Preferred
Stock") will be subject to approval by MC's stockholders; and
WHEREAS, as a condition to its willingness to enter into the Stock
Purchase Agreement, Wireless has requested that the Stockholder agree to vote
its MC Shares as described herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Representation and Warranty of the Stockholder. The
Stockholder represents and warrants to Wireless that:
(a) the Stockholder is the beneficial owner of the
number of MC Shares set forth opposite its name on the signature page hereof,
free of any other limitation or restriction on the right to vote such MC
Shares;
(b) other than the MC Shares set forth opposite its name
on the signature page hereof, the Stockholder does not own, of record or
beneficially, any MC Shares;
(c) this Agreement has been duly authorized by all
necessary action on the part of the Stockholder, has been duly executed by the
Stockholder and constitutes a valid and binding agreement of such stockholder
enforceable against such stockholder in accordance with its terms; and
(d) neither the execution and delivery of this Agreement
by the Stockholder nor the consummation of the transactions contemplated hereby
will (i) require any
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consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority or other person (except for
filings required pursuant to the Securities Exchange Act of 1934) or (ii)
conflict with or result in any breach or violation of any provision of any
charter, by-law or agreement to which the Stockholder is a party or by which it
is bound.
2. Agreement to Vote or Consent. The Stockholder hereby agrees
to attend the meeting of stockholders of MC to be called pursuant to Section
6.5 of the Stock Purchase Agreement (including any adjournment or adjournments
thereof) ("MC Meeting"), in person or by proxy, and to vote, or cause to be
voted (or, if the stockholders of MC act by written consent, to consent in
writing, or cause to consent in writing, with respect to) all MC Shares,
whether issued heretofore or hereafter, that the Stockholder owns or has the
right to vote or consent: (a) in favor of the issuance of the Convertible
Preferred Stock in the Transaction and (b) in favor of a proposed amendment to
the Amended and Restated Certificate of Incorporation of MC, as amended, to
increase the authorized number of MC Shares to 100,000,000.
3. Revocation of Proxies and Consents. To the extent
inconsistent with Section 2 hereof, the Stockholder hereby revokes any and all
previous proxies or written consents with respect to the Stockholder's MC
Shares.
4. Transfer. Nothing contained in this Agreement shall prevent
the Stockholder from selling, transferring, pledging or otherwise disposing of,
any MC Shares. Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto understand that the MC Shares have been pledged
by the Stockholder to secure obligations under its Credit Agreement and the
Stockholder's obligations hereunder are subject to continued compliance by the
Stockholder with its obligations under such Credit Agreement and the Security
Agreement related thereto. The Stockholder represents that it presently is in
compliance with its obligations under the Credit Agreement and Security
Agreement.
5. Specific Enforcement. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this Agreement and that
the obligations of the parties hereto shall be specifically enforceable, in
addition to any other remedy which may be available at law or in equity.
6. Termination. This Agreement shall terminate on the earliest
of (i) the conclusion of the MC Meeting (including any adjournment thereof),
(ii) the agreement of the parties hereto to terminate this Agreement, or (iii)
termination of the Stock Purchase Agreement, but in any event shall terminate
no later than nine (9) months from the date of the Stock Purchase Agreement.
In addition, this Agreement shall terminate with respect to MC Shares when they
are no longer beneficially owned by the Stockholder.
7. Successors and Assigns. This Agreement shall not be assigned,
except by operation of law or otherwise without the prior written consent of
the other parties hereto. This Agreement will be binding upon, inure to the
benefit of and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
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8. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
upon receipt, if delivered personally or by nationally recognized overnight
courier service, or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like changes of address) or
sent by electronic transmission to the telecopier number specified below:
If to Wireless, to both:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Director, Mergers and Acquisitions
Facsimile Number: (000) 000-0000
and
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
With copies (which shall not constitute notice) to:
AT&T Wireless Services, Inc.
Xxxxx 000
000 000xx Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
and
Xxxxx X. Xxxxxxxx
Xxxxxx & Xxxxx LLP/Xxxxxxx Xxxxxxxx X.X.
Suite 4500
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
If to the Stockholder, to:
Xxxxx X. Xxxxx
Bariston Associates
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Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile Number: (000) 000-0000
and
Xxxxxx X. Xxxxxxx
Stroock & Xxxxxxx Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile Number: (000) 000-0000
Copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile Number: (000) 000-0000
9. Amendments. This Agreement may not be amended, changed
supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Wireless and the Stockholder.
10. Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties hereto relating to the subject
matter hereof and supersedes all prior agreements and understandings relating
to such subject matter. There are no representations, warranties or covenants
by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement.
11. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
12. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by a duly authorized officer of the Stockholder and a duly authorized
officer of Wireless on the day and year first written above.
AT&T WIRELESS SERVICES, INC.
By: /S/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
MC Shares Beneficially Owned: PAGE AMERICA GROUP, INC.
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3,161,856*
By: /S/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Chairman & CEO
* In addition, PageAmerica owns shares of Series B Junior Convertible
Preferred Stock which are convertible into Common Stock but do not have voting
rights on the matters covered by this Agreement.
