EXHIBIT 10.17
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 dated August 19, 1998 (this "Amendment") amends that
certain Registration Rights Agreement dated as of June 29, 1998 by and among
Arch Communications Group, Inc., a Delaware corporation (the "Company"), and the
Investors that are parties thereto (the "Agreement"). Capitalized terms used
but not otherwise defined in this Amendment shall have the respective meanings
ascribed to such terms in the Agreement.
INTRODUCTION
WHEREAS, the Company and the Investors have executed the Agreement
providing the Investors with certain registration rights;
WHEREAS, the Company wishes to acquire MobileMedia Communications, Inc.
("MobileMedia") pursuant to an Agreement and Plan of Merger (the "Merger
Agreement") and a related plan of reorganization (the "Plan").
WHEREAS, in connection with the Merger Agreement and the Plan, the Company
will issue rights to acquire its equity securities to certain unsecured
creditors of MobileMedia;
WHEREAS, pursuant to the Merger Agreement and the Plan, the Company will be
required to grant certain registration rights to (a) X.X. Xxxx Asset Management
Co., L.L.C., The Northwestern Mutual Life Insurance Company, The Northwestern
Mutual Life Insurance Company for its Group Annuity Separate Account,
Northwestern Mutual Series Fund, Inc. for its High Yield Bond Portfolio, Credit
Suisse First Boston and Whippoorwill Associates, Inc. or their affiliates
(collectively, the "Standby Purchasers") and (b) other creditors of MobileMedia
or its affiliates that become the beneficial owner of at least 10% of the
outstanding shares of Arch common stock as a result of transactions contemplated
by the Merger Agreement and Plan (the "Other MobileMedia Acquirors");
WHEREAS, in connection with the Merger Agreement and the Plan the Company
wishes to amend the Agreement, and the Investors are willing to amend the
Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Section 2.3 of the Agreement shall be and hereby is deleted and the
following is substituted in lieu thereof:
If the distribution of Registrable Securities is being effected by
means of an underwriting and if the managing underwriter has not
limited the number of Registrable Securities to be underwritten, the
Company (i) may include securities for its own account in such
registration if the managing underwriter so agrees and
(ii) may include securities for the account of stockholders other than
the Holders in such registration if the managing underwriter so agrees
and if Holders holding a majority of the Registrable Securities
covered by such registration consent to such inclusion; provided that
no such consent of the managing underwriters or the Holders shall be
required if such securities are for the account of a Standby Purchaser
or Other MobileMedia Acquiror. The inclusion of such shares by the
Company or such other holders shall be on the same terms as the
registration of shares held by the Initiating Holders. In the event
that the underwriters exclude some of the securities to be registered,
the securities to be sold for the account of the Company and any other
holders shall be excluded in their entirety prior to the exclusion of
any Registrable Securities.
2. Section 3.2(a) of the Agreement shall be and hereby is deleted and the
following is substituted in lieu thereof:
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the underwriter
may exclude some or all Registrable Securities from such registration
and underwriting. The Company shall so advise all Holders of
Registrable Securities, and the number of shares of Common Stock to be
included in such registration shall be allocated as follows: first,
for the account of the Company, all shares of Common Stock proposed to
be sold by the Company; and second, for the account of the Holders and
any other stockholder participating in such registration, the number
of shares of Common Stock requested to be included in the registration
by such Holders and other stockholders, which shall be allocated on a
pari passu basis in proportion, as nearly as practicable, to the
respective amounts of Common Stock that are proposed to be offered and
sold by such Holders or other stockholders at the time of filing the
registration statement; provided, however, that if such registered
public offering involving an underwriting is initiated at the request
of any Standby Purchaser or any Other MobileMedia Acquiror, and if the
managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the shares to
be included in such registration shall be allocated as follows: first,
for the account of the Standby Purchasers (if the registration has
been initiated at the request of a Standby Purchaser) or the Other
MobileMedia Acquirors (if the registration has been initiated at the
request of an Other MobileMedia Acquiror), all such shares of Common
Stock proposed to be sold by them; and second, for the account of the
Holders and any other stockholder (including the Other MobileMedia
Acquirors in the case of a registration initiated at the request of a
Standby Purchaser, or the Standby Purchasers in the case of a
registration initiated at the request of an Other MobileMedia
Acquiror) participating in such registration, the number of shares of
Common Stock requested to be included in the registration by such
Holders and other
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stockholders, which shall be allocated on a pari passu basis in
proportion, as nearly as practicable, to the respective amounts of
Common Stock that are proposed to be offered and sold by such Holders
or other stockholders at the time of filing the registration
statement; provided further, however, that the immediately preceding
proviso shall only be effective if and to the extent that the Holders
receive substantially similar treatment, for purposes of exclusion
priorities, under any "piggyback" registration rights granted by the
Company to the Standby Purchasers or other MobileMedia Acquirors in
connection with registrations initiated hereunder upon the request of
the Holders. No Registrable Securities excluded from the underwriting
by reason of the underwriters' marketing limitation shall be included
in such registration.
3. Section 11.8 of the Agreement shall be and hereby is deleted and the
following is substituted in lieu thereof:
Each Holder agrees, if requested by the Company and an underwriter of
Common Stock (or other securities) of the Company, not to sell or otherwise
transfer or dispose of, whether in privately negotiated or open market
transactions, any Common Stock (or other securities) of the Company held by
such Holder during the ninety (90) day period following the effective date
of a registration statement of the Company filed under the Securities Act
for any underwritten registered public offering for the account of and
initiated by the Company, without the prior consent of such underwriter,
provided, however, that all Holders (except as provided in the following
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proviso), officers, directors of the Company and all other holders and
optionholders of at least 1% of the Company's voting securities on an as-
converted basis enter into similar agreements; and provided, further,
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however, that this Section 11.8 shall not apply to any Holder that
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beneficially owns less than 4% of the Company's outstanding Common Stock
(assuming the conversion of all outstanding convertible securities).
Such agreement shall be in writing in a form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction until
the end of said ninety (90) day period.
4. Except as amended hereby, the Agreement is confirmed in all respects.
5 This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and to be
performed entirely within the state without regard to principles of conflicts of
law.
6. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but all of which together constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
COMPANY:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ X.X. Xxxxx, Xx.
---------------------------------
Name: X.X. Xxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
INVESTORS:
SANDLER CAPITAL PARTNERS IV, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management, General
Partner
By: MJDM Corp., a General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
President
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SANDLER CAPITAL PARTNERS IV, FTE, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
President
/s/ Xxxxxx Xxxxxxx
---------------------------------
XXXXXX XXXXXXX
/s/ Xxxx Xxxxxxxxx
---------------------------------
XXXX XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxx Xxxxxxx
---------------------------------
XXXXXX XXXXXXX
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SOUTH FORK PARTNERS
By: /s/ Xxxxxxx Xxxxx, Xx.
---------------------------------
Xxxxxxx Xxxxx, Xx.
Xxxxx Capital Management LLC
General Partner of South Fork Partners
THE GEORGICA INTERNATIONAL
FUND LIMITED
By: /s/ Xxxxxxx Xxxxx, Xx.
---------------------------------
Xxxxxxx Xxxxx, Xx.
Georgica Advisors LLC
Investment Advisor to The Georgica
International Fund Limited
ASPEN PARTNERS
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
Xxxxx Capital Management LLC
General Partner of Aspen Partners
CONSOLIDATED PRESS
INTERNATIONAL LIMITED
By: /s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
Georgica Advisors LLC
Investment Advisor to
Consolidated Press
International Limited
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