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EXHIBIT 2.3
STOCKHOLDERS VOTING AGREEMENT
STOCKHOLDERS VOTING AGREEMENT, dated as of August 8, 1997 (this
"Agreement"), by and among ProNet Inc., a Delaware corporation ("PN"), and the
stockholders identified on Annex A hereto (each, an "MC Stockholder" and
collectively, the "MC Stockholders") of Metrocall, Inc., a Delaware corporation
("MC").
WHEREAS, MC and PN have entered into an Agreement and Plan of Merger
of even date herewith (the "Merger Agreement"), pursuant to which the parties
thereto have agreed, upon the terms and subject to the conditions set forth
therein, to merge PN with and into MC (the "Merger");
WHEREAS, as of the date hereof, each of the MC Stockholders is the
beneficial owner of, and has the sole right to vote and dispose of, the number
of shares (the "Owned Shares") of the common stock, par value $.01 per share,
of MC (the "MC Shares") which is set forth opposite such MC Stockholder's name
in Annex A; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, PN has required that each of the MC Stockholders agree to vote their
Owned 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 MC Stockholders. Each of
the MC Stockholders, individually and not jointly, represents and warrants to
PN with respect to itself that:
(a) such MC Stockholder is the beneficial owner of the
number of MC Shares set forth opposite such MC Stockholder's name under the
column "Total Shares" in Annex A hereto, free and clear of any security
interests, liens, charges, encumbrances, equities, claims, options (other than
pledges pursuant to commercially customary brokers margin accounts) or
limitations of whatever nature and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
the Owned Shares), other than those arising under the Securities Act of 1933,
as amended, and applicable state securities laws or as disclosed in Section 4.2
of the Merger Agreement;
(b) other than the MC Shares set forth by such MC
Stockholder's name in Annex A hereto as "Total Shares," such MC Stockholder
does not of record or beneficially, any MC Shares;
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(c) this Agreement has been duly authorized by all
necessary action on the part of such MC Stockholder, has been duly executed by
such MC 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 such MC Stockholder nor the consummation of the transactions contemplated
hereby will (i) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority or
other person or (ii) conflict with or result in any breach or violation of any
provision of any charter, by-law or agreement to which such MC Stockholder is a
party or by which it or he or she is bound.
2. Agreement to Vote or Consent. Each MC Stockholder hereby
agrees to attend the meeting of stockholders of MC to be called pursuant to
Section 5.2 of the Merger 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 such MC Stockholder owns or has
the right to vote or consent (a) in favor of approval and adoption of the
Merger Agreement and the Merger, 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 80,000,000.
3. Proxy. To secure each MC Stockholder's commitments set forth
in Section, 2, each MC Stockholder constitutes and appoints PN or its officers,
and each of them, with full power of substitution, to be its true and lawful
proxy and attorney-in-fact from the date hereof until conclusion of the MC
Meeting (including any adjournment or adjournments thereof) to vote all MC
Shares then beneficially owned by such MC Stockholder in accordance with
Section 2. This proxy shall be deemed coupled with an interest, and is
irrevocable during the term of this Agreement and will survive the death,
incompetency and disability of any MC Stockholder who is an individual and will
survive the merger, liquidation, dissolution or other termination of any MC
Stockholder that is an entity.
4. Revocation of Proxies and Consents. To the extent
inconsistent with Section 2 hereof, each MC Stockholder hereby revokes any and
all previous proxies or written consents with respect to such MC Stockholder's
Owned Shares.
5. Transfer. From the date hereof until the first to occur of
the Closing or the termination of the this Agreement, no MC Stockholder will,
directly or indirectly, sell, transfer, pledge (other than pledges pursuant to
commercially customary brokers margin accounts) or otherwise dispose of, any
Owned Shares (collectively, a "Transfer") to any person other than PN or its
designee, or grant an option with respect to any of the foregoing, or enter
into any other agreement or arrangement with respect to any of the foregoing,
unless such Owned Shares
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remain subject to the MC Stockholder's obligations hereunder in the hands of
any transferee, provided, that nothing in this Agreement shall preclude the MC
Stockholder from transferring that number of MC Shares in excess of the number
of Owned Shares free and clear of any obligations hereunder.
6. 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.
7. Termination. This Agreement shall terminate on the earliest
of (i) the conclusion of the Meeting (including any adjournment thereof), (ii)
the agreement of the parties hereto to terminate this Agreement, or (iii)
termination of the Merger Agreement pursuant to Section 7.1 thereof, but in any
event shall terminate on March 31, 1998.
8. 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.
9. Scope of Agreement. Nothing in this Agreement shall, is
intended to, or shall be construed to, limit or in any way restrict the ability
of any MC Stockholder to act in such MC Stockholder's capacity as an officer or
director of MC or to exercise or carry out such MC Stockholder's fiduciary
duties as an officer or director of MC, so long as such MC Stockholder fulfills
his obligations under this Agreement.
10. 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 PN, to:
ProNet Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ Early
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the MC Stockholders, to:
c/o Wilmer, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
11. Amendments. This Agreement may not be amended, changed
supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by PN and each MC Stockholder.
12. 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.
13. 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.
14. 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 the MC Stockholders and a duly authorized officer of PN on the day
and year first written above.
PRONET INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & CEO
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
/s/ ▇▇▇▇▇▇ ▇. Aprahamina 40,000 40,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 3,000,000 3,536,200
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 210,000 210,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III 347,515 347,515
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III 50,000 50,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
STOCKHOLDERS VOTING AGREEMENT
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 1,900,000 2,129,448
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 800,000 869,345
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
UBS CAPITAL LLC 970,365 970,365
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Its:
WILMINGTON SECURITIES, INC. 1,154,185 1,154,185
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
STOCKHOLDERS VOTING AGREEMENT
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. 14,130 14,130
▇▇▇▇▇▇, Trustees U/A/T Dated
8/28/68 for Juliet ▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. 14,130 14,130
▇▇▇▇▇▇, Trustees U/A/T Dated
8/28/68 for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇.▇. Grefenstette and ▇▇▇▇▇▇ ▇. 14,130 14,130
▇▇▇▇▇▇, Trustees U/A/T Dated
8/28/68 for ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇.
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. 14,130 14,130
▇▇▇▇▇▇, Trustees U/A/T Dated
8/28/68 for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
STOCKHOLDERS VOTING AGREEMENT
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 42,391 42,391
▇▇▇▇▇▇▇ and ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
Trustees of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trust U/A Dated November 18, 1985
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
STOCKHOLDERS VOTING AGREEMENT
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