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Exhibit - 2.3
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT dated as of May 10, 2000 (this "Amendment") between Paging
Network, Inc., a Delaware corporation ("PageNet"), Arch Communications Group,
Inc., a Delaware corporation ("Arch"), and St. Louis Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Arch ("Merger Sub").
WHEREAS, PageNet, Arch and Merger Sub have previously entered into that
certain Agreement and Plan of Merger dated as of November 7, 1999, as amended on
January 7, 2000, between PageNet, Arch and Merger Sub (the "Merger Agreement");
and
WHEREAS, the respective Boards of Directors of PageNet, Arch and Merger
Sub have determined that it is in the best interests of PageNet or Arch, as the
case may be, and its respective stockholders to amend the Merger Agreement as
hereinafter set forth and have duly approved this Amendment and authorized its
execution and delivery.
NOW, THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used herein, unless otherwise defined herein,
shall have the meanings given them in the Merger Agreement, and each reference
in the Merger Agreement to "this Agreement", "hereof", "herein", "hereunder" or
"hereby" and each other similar reference shall be deemed to refer to the Merger
Agreement as amended hereby. All references to the Merger Agreement in any other
agreement between PageNet and Arch relating to the transactions contemplated by
the Merger Agreement shall be deemed to refer to the Merger Agreement as amended
hereby.
2. Section 1.1 of the Merger Agreement is hereby amended by deleting
the reference to "Article III" and substituting in lieu thereof "Articles II and
III".
3. The first sentence of Section 4.1(a) of the Merger Agreement is
hereby deleted in its entirety and replaced with the following:
"Each share of common stock, par value $0.01 per share, of PageNet
(each, a "PageNet Share") issued and outstanding immediately prior to
the Effective Time (excluding PageNet Shares (collectively, "Excluded
PageNet Shares") that are owned by Arch, Merger Sub or any direct or
indirect, wholly owned subsidiary of Arch or Merger Sub (collectively,
the "Arch Companies") or Dissenting Shares (as defined below)), shall
be converted into and become exchangeable for 0.1247
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of a share (the "Exchange Ratio") of common stock, par value $0.01 per
share, of Arch (the "Arch Common Stock"), subject to adjustment as
provided in Section 4.4, (the "Merger Consideration")."
4. Section 4.2 (a) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(a) Exchange Procedures. Promptly after the Effective Time, Arch shall
cause its transfer agent or another exchange agent selected by Arch
with PageNet's prior approval (the "Exchange Agent"), which shall not
be unreasonably withheld, to mail to each holder of record as of the
Effective Time of a Certificate: (i) a letter of transmittal specifying
that delivery of the Certificates shall be effected, and that risk of
loss and title to the Certificates shall pass, only upon delivery of
the Certificates (or affidavits of loss in lieu thereof) to the
Exchange Agent in accordance with the terms and conditions of such
letter of transmittal, such letter of transmittal to be in such form
and have such other provisions as Arch and PageNet may reasonably
agree; and (ii) instructions for exchanging the Certificates for: (A)
certificates representing shares of Arch Common Stock; (B) with respect
to holders of PageNet Shares at the Vast Distribution Record Date (as
defined in Section 6.22), the Distributed Interests (as defined in
Section 6.22), and (C) any unpaid dividends and other distributions due
to such holder with respect to such shares. Subject to Sections 4.2(g)
and 4.3, upon proper surrender of a Certificate for cancellation (or
affidavits of loss in lieu thereof) to the Exchange Agent together with
such letter of transmittal, duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor: (x) a
certificate representing that number of shares of Arch Common Stock
that such holder is entitled to receive pursuant to this Article IV
and, with respect to PageNet Shares at the Vast Distribution Record
Date, certificates representing the Distributed Interests that such
holder is entitled pursuant to Section 6.22; and (y) a check in the
amount (after giving effect to any required tax withholdings) of any
dividends or other distributions that such holder has the right to
receive pursuant to the provisions of this Article IV. The Certificate
so surrendered shall forthwith be canceled. No interest will be paid or
accrued on any amount payable upon due surrender of any Certificate.
Notwithstanding the foregoing, a holder of Dissenting Shares shall not
be required to surrender a Certificate in order to receive Distributed
Interests with respect to the PageNet Shares represented by such
Certificate, provided that Arch has confirmed to the Exchange Agent
that such holder has taken all necessary steps to perfect appraisal
rights pursuant to Section 4.3 hereof and the DGCL. In the event of a
transfer of ownership of PageNet Shares that is not registered in the
transfer records of PageNet, a certificate representing the proper
number of shares of Arch Common Stock and, with respect to PageNet
Shares at the Vast Distribution Record Date, certificates representing
the Distributed Interests, together with a check for any dividends or
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distributions with respect thereto, may be issued and/or paid to such a
transferee if the Certificate formerly representing such PageNet Shares
is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that all
applicable stock transfer taxes have been paid. If any certificate for
shares of Arch Common Stock (and/or Distributed Interests) is to be
issued in a name other than that in which the Certificate surrendered
in exchange therefor is registered, it shall be a condition of such
exchange that the Person (as defined below) requesting such exchange
shall pay all transfer and other taxes required by reason of the
issuance of certificates for shares of Arch Common Stock and/or
Distributed Interests in a name other than that of the registered
holder of the Certificate surrendered, or shall establish to the
satisfaction of Arch or the Exchange Agent that such tax has been paid
or is not applicable.
The term "Person" means any individual, corporation (including
not-for-profit), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization,
Governmental Entity (as defined in Section 5.1(d)(i)), or other entity
of any kind or nature."
5. Section 4.2(c) of the Merger Agreement is hereby amended by deleting
the reference to "or Arch Series C Preferred Shares" and substituting in lieu
thereof "or, if Arch elects to convert shares of Arch Class B Common Stock (as
defined below) into shares of Arch Common Stock at the Effective Time, Arch
Class B Common Stock."
6. Section 4.2(e) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(e) Termination of Exchange Period; Unclaimed Stock. Any shares of
Arch Common Stock, and any portion of the dividends or other
distributions with respect to the Arch Common Stock deposited by Arch
with the Exchange Agent (including the proceeds of any investments
thereof) that remain unclaimed by the holders of Certificates 180 days
after the Effective Time shall be re-delivered to Arch. Any holders of
Certificates who have not theretofore complied with this Article IV
shall thereafter be entitled to look only to the Surviving Corporation
for exchange of shares of Arch Common Stock, and any dividends and
other distributions with respect thereto issuable and/or payable
pursuant to Section 4.1, Section 4.2(b), and Section 4.2(d) upon due
surrender of their Certificates (or affidavits of loss in lieu
thereof), in each case, without any interest thereon. Any Distributed
Interests, and any portion of the dividends or other distributions with
respect to the Distributed Interests deposited by PageNet with the
Exchange Agent (including the proceeds of any investments thereof) that
remain unclaimed by the holders of Certificates 180 days after the
Effective Time shall be re-delivered to the Distributed Subsidiary. Any
holders of Certificates who have not theretofore
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complied with this Article IV shall thereafter be entitled to look only
to the Distributed Subsidiary for the Distributed Interests, and any
dividends and other distributions with respect thereto issuable and/or
payable pursuant to Section 4.1, Section 4.2(b), and Section 6.22 upon
due surrender of their Certificates (or affidavits of loss in lieu
thereof), in each case, without any interest thereon. Notwithstanding
the foregoing, none of Arch, the Distributed Subsidiary, the Exchange
Agent, nor any other Person shall be liable to any former holder of
Certificates for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws."
7. Section 4.2(f) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(f) Lost, Stolen or Destroyed Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed, and the posting by such Person of a bond
in the form customarily required by Arch as indemnity against any claim
that may be made against it with respect to such Certificate, Arch and
PageNet will issue the shares of Arch Common Stock and the Distributed
Interests and the Exchange Agent will issue stock and any dividends and
other distributions with respect thereto issuable or payable in
exchange for such lost, stolen, or destroyed Certificate pursuant to
Section 4.1, Section 4.2(b), Section 4.2(d), and Section 6.22, in each
case, without interest."
8. Section 4.3 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"4.3. Dissenters' Rights. Notwithstanding anything to the contrary,
PageNet Shares outstanding immediately prior to the Effective Time and
held by a stockholder of record as of the time of the PageNet
Stockholders Meeting who has not voted in favor of the Merger or
consented thereto in writing and who has delivered a written demand for
appraisal of such shares at or before the PageNet Stockholders Meeting
in accordance with Section 262 of the DGCL ("Dissenting Shares"), shall
not be converted into the right to receive the Merger Consideration
unless such holder fails to perfect or withdraws or otherwise loses his
right to appraisal and payment under the DGCL. If, after the Effective
Time, any such holder fails to perfect or effectively withdraws or
loses his right to appraisal and payment, such Dissenting Shares shall
thereupon be treated as if they had been converted as of the Effective
Time into the right to receive the Merger Consideration to which such
holder is entitled, without interest or dividends thereon."
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9. Section 4.4 of the Merger Agreement is hereby amended by deleting
all references to ", Arch Series C Preferred Shares" and all references to "and
the Series C Exchange Ratio".
10. Section 4.5 of the Merger Agreement is hereby amended by deleting
the reference to "(with a corresponding reduction in the number of shares
offered to the holders of PageNet Shares (or Distributed Interests) or the
holders of Arch Common Stock, respectively)." and substituting in lieu thereof
"(with a corresponding reduction in the number of shares of Arch Common Stock
(or Distributed Interests) offered to the holders of PageNet Shares or the
holders of Arch Common Stock, respectively).".
11. Section 5.1(c)(ii) of the Merger Agreement is hereby amended by
deleting all references to "and the Series C Consent Agreement" and all
references to "and a majority of the votes of the Arch Series C Preferred Shares
(for certain of the Certificate Amendments)".
12. Section 5.1(o) of the Merger Agreement is hereby amended by
deleting all references to "or, the Series C Consent Agreement, as applicable".
13. Section 6.3 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"6.3. The Certificate Amendments. Arch shall take all actions necessary
(subject to applicable law and any necessary stockholder approval) to
adopt the Certificate Amendments. The Certificate Amendments shall
provide for an increase in the authorized number of shares of Arch
Common Stock to an amount sufficient to effectuate the actions
contemplated hereby and, if Arch so elects, may provide for the
conversion of each share of Arch Class B Common Stock into one share of
Arch Common Stock. Some or all of the Certificate Amendments may, in
the discretion of Arch, be made contingent upon the consummation of the
Merger or the Alternative Merger (as the case may be)."
14. Section 6.5(b) of the Merger Agreement is hereby amended by
deleting all references to ", the conversion of the Arch Series C Preferred
Shares" and substituting in lieu thereof ", the conversion of the Arch Class B
Common Stock (if Arch elects to have such shares converted pursuant to the
Certificate Amendments)" and by deleting the reference to (the "Arch
Stockholders Approval") and substituting in lieu thereof "(with respect to all
matters other than the approval of the conversion of the Arch Class B Common
Stock pursuant to the Certificate Amendments, the "Arch Stockholder Approval").
15. Section 6.9 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"6.9 Stock Exchange Listing. Arch shall use its reasonable best efforts
to file a notification for listing of additional shares with respect to
the shares of Arch
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Common Stock to be issued pursuant to the Merger, Arch Exchange Offer
and pursuant to the Certificate Amendments with the Nasdaq Stock Market
("NASDAQ") on or prior to the Closing Date."
16. Section 6.18(b) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) The obligations of PageNet under the PageNet Exchange Offer shall
be subject to the satisfaction of the conditions to the consummation of
the Merger set forth in Article VII of this Agreement and shall be
subject to the further condition that not less than 97.5% of the
aggregate outstanding principal amount of PageNet Notes and not less
than a majority of the outstanding principal amount of each series of
PageNet Notes shall have been validly tendered in accordance with the
terms of the PageNet Exchange Offer prior to the expiration date of the
PageNet Exchange Offer and not withdrawn (such 97.5% of the outstanding
principal amount of the PageNet Notes and not less than a majority of
the outstanding principal amount of each series of PageNet Notes
tendered and not withdrawn being herein referred to as the "PageNet
Minimum Condition"). Except as otherwise provided in this Agreement, no
term or condition of the Exchange Offers may be amended or modified
without the written consent of the parties hereto, which consent shall
not be unreasonably withheld."
17. Section 6.18(h) of the Merger Agreement is hereby amended by
deleting the reference to "the twentieth business day" and substituting in lieu
thereof "the thirty-fifth calendar day".
18. Section 6.19 of the Merger Agreement is amended by deleting the
definition of "Initial Determination Date" and substituting in lieu thereof the
following:
""Initial Determination Date" shall mean the date which is 35 calendar
days after the date upon which the S-4 Registration Statement and the
PageNet Exchange Registration Statement are declared effective by the
SEC;"
19. Section 6.19 of the Merger Agreement is hereby amended by deleting
the definition of "Requisite Conditions to the Prepackaged Plan" and
substituting in lieu thereof the following:
""Requisite Conditions to the Prepackaged Plan" shall mean (i) the
PageNet Conditions to the Prepackaged Plan, (ii) the Arch Stockholders
Approval, and (iii) that either the Exit Financing has been obtained or
upon entry of the Final Order will be obtained."
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20. Section 6.19 of the Merger Agreement is hereby amended by deleting
the definition of "Arch Conditions to the Prepackaged Plan".
21. Section 6.19 of the Merger Agreement is hereby amended by deleting
all references to "the PageNet Minimum Condition and the Arch Minimum Condition
are satisfied" and substituting in lieu thereof "the PageNet Minimum Condition
is satisfied".
22. Section 6.19(a)(i) of the Merger Agreement is hereby amended by
deleting all references to "satisfaction of the PageNet Minimum Condition and
the Arch Minimum Condition" and substituting in lieu thereof "satisfaction of
the PageNet Minimum Condition".
23. Section 6.19(a)(iv) of the Merger Agreement is hereby amended by
deleting all references to "the Arch Conditions to the Prepackaged Plan" and
substituting in lieu thereof "the Arch Stockholders Xxxxxxxx".
00. Section 6.19(a)(v) of the Merger Agreement is hereby amended by
deleting all references to "the PageNet Minimum Condition and the Arch Minimum
Condition have been satisfied" and substituting in lieu thereof "the PageNet
Minimum Condition has been satisfied".
25. Section 6.21 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"6.21. Payment of Dissenters' Rights. Following the Effective Time, any
payment made with respect to a holder of Dissenting Shares entitled to
payment under the DGCL will be made solely from the assets of the
Surviving Corporation. Arch shall not make any payments to holders of
Dissenting Shares and shall not directly or indirectly reimburse the
Surviving Corporation for the payments made with respect to Dissenting
Shares."
26. Section 6.22 of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"6.22. Distribution of Interests in Vast to PageNet Shareholders. Prior
to the Closing, the Board of Directors of PageNet will set aside for
distribution, solely to those holders of PageNet Shares immediately
prior to the acceptance of PageNet Notes in the PageNet Exchange Offer
(the "Vast Distribution Record Date"), with respect to each PageNet
Share issued and outstanding at such date, interests (the "Distributed
Interests") representing the portion of such equity ownership in Vast
Solutions, Inc. (the "Distributed Subsidiary") equal to (x) subject to
Section 6.1(d), 11.6% of the total equity ownership of the Distributed
Subsidiary divided by (y) the number of PageNet Shares issued and
outstanding at the Vast Distribution Record Date (the distribution of
the Distributed Interests shall be referred to herein as the "Vast
Distribution"). The distribution of the Distributed
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Interests shall be conditioned upon the occurrence of (i) either (A)
the satisfaction of the PageNet Minimum Condition and the acceptance of
the PageNet Notes or (B) the filing of the Final Confirmation Order and
(ii) the consummation of the Merger. PageNet and the Distributed
Subsidiary shall take such action reasonably necessary (including
filings with and no-action requests of the SEC and communications with
stockholders) to effectuate the Vast Distribution. Upon satisfaction of
the conditions to the Vast Distribution, Arch shall, in accordance with
Section 4.2 of this Agreement and in connection with the exchange of
PageNet certificates, use its reasonable best efforts to consummate, or
cause to be consummated the Vast Distribution as promptly as
practicable after the Effective Time."
27. Section 7.1(b) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(b) "NASDAQ Listing. The notification for listing of additional shares
with respect to all shares of Arch Common Stock issuable pursuant to
this Agreement shall have been filed with NASDAQ."
28. Section 7.1(d) of the Merger Agreement is hereby amended by
deleting all references to "Exchange Offers" and substituting in lieu thereof
"PageNet Exchange Offer".
29. Section 7.1(e) of the Merger Agreement is hereby amended by
deleting all references to "Exchange Registration Statements" and substituting
in lieu thereof "PageNet Registration Statement".
30. Section 7.1(g) of the Merger Agreement is hereby amended by
deleting all references to "and the Arch Minimum Condition" and all references
to "and the Arch Minimum Condition shall have obtained".
31. Section 7.3(f) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(f) Intentionally Omitted."
32. Section 7.3(g) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
"(g) Vast Distribution. The Board of Directors of PageNet shall have
set aside Distributed Interests pursuant to Section 6.22 of this
Agreement or the Final Confirmation Order shall have been entered
confirming the Prepackaged Plan."
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33. Section 8.5(b) of the Merger Agreement is hereby amended by
deleting all references to "or Arch's noteholders do not satisfy the Arch
Minimum Condition with respect to the Arch Notes".
34. Section 9.7 of the Merger Agreement is hereby amended by deleting
all references to "Series C Consent Agreement,".
35. The Merger Agreement is hereby amended by replacing all references
to "June 30, 2000" with "September 30, 2000".
36. The Merger Agreement is hereby amended by replacing all references
to "Spinoff" with "Vast Distribution".
37. The Merger Agreement is hereby amended by replacing all references
to "Spinoff Record Date" with "Vast Distribution Record Date".
38. The Index of Defined Terms in the Merger Agreement is hereby
amended by deleting all references to "Arch Conditions to the Prepackaged Plan",
"Arch Minimum Conditions", "Series C Consent Agreement", "Series C
Consideration" and "Series C Exchange Ratio" and the associated section
references and by adding the following immediately after the reference to
"Dismissal Order":
"Dissenting Shares . . . . . . . . . . . . . . . . . . . . .4.3"
39. The Table of Contents in the Merger Agreement is hereby amended to
reflect all of the amendments to the Merger Agreement set forth herein.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officers of the parties to this Amendment as of the date
first written above.
PAGING NETWORK, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ X.X. Xxxxx, Xx.
-------------------------------------
Name: X.X. Xxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
ST. LOUIS ACQUISITION CORP.
By: /s/ X.X. Xxxxx, Xx.
-------------------------------------
Name: X.X. Xxxxx, Xx.
Title: Chief Executive Officer
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