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EXHIBIT 10.35
CONFIDENTIAL
|__| Xxxxxx'x Copy
|__| Company's Copy
FIRST AMENDMENT TO
CHANGE OF CONTROL AGREEMENT
To XXXXXX X. XXXXXX:
By signing below, you agree to this First Amendment (the "Amendment")
to your Change of Control Agreement with Metrocall, Inc. (the "Company") dated
as of May 15, 1996 (the "Change of Control Agreement"). This Amendment is
effective as of April 1, 2001.
1. Section 1(b) is hereby deleted in its entirety and replaced with
the following:
"(b) CHANGE OF CONTROL. For purposes of this Agreement, the
term "Change in Control" means the first to occur of the
following:
(i) any Person or group of Persons acting in concert, in
a transaction or a series of transactions, is or becomes
the Beneficial Owner, directly or indirectly, of
securities of the Company representing more than 50% of
the combined voting power of the Company's then
outstanding securities that have the right to vote for
the election of directors generally (not including in
such securities beneficially owned by such Person any
securities acquired directly from or received through an
exchange offer with the Company), other than any Person
who becomes such a Beneficial Owner in connection with a
transaction described in clause (i) of Section 3.2(3);
or
(ii) the following individuals cease for any reason to
constitute 66 2/3% of the directors of the Company then
serving: individuals who on the effective date hereof
constitute the Board, and any new director whose
appointment or election by the Board or nomination for
election by the Company's stockholders was approved or
recommended by at least two-thirds (2/3) of the
directors then still in office who either were directors
on the date hereof or whose appointment, election or
nomination for election was previously so approved or
recommended (other than a new director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited
to a consent solicitation, relating to the election of
directors of the Company); or
(iii) there is consummated a merger, consolidation or
other business combination (including an exchange of
securities with the security holder's of a corporation
that is a constituent in such business combination) of
the Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a
merger, consolidation or business combination which
would result in the voting
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securities of the Company outstanding immediately prior
to such merger, consolidation or business combination
continuing to represent at least a majority of the
combined voting power of the securities having the right
to vote for the election of directors generally of the
Company or the surviving entity or any parent thereof
outstanding immediately after such merger, consolidation
or business combination (either by remaining outstanding
or by being converted into or exchanged for voting
securities of the surviving entity or parent thereof);
(iv) there is consummated an agreement for the sale,
lease or other disposition by the Company of all or
substantially all of the Company's assets, other than a
sale, lease or other disposition by the Company of all
or substantially all of the Company's assets to an
entity, at least a majority of the combined voting power
of the outstanding securities of which are owned by
stockholders of the Company in substantially the same
proportions as their ownership of the Company
immediately prior to such sale; or
(v) there has been an entry by a court of competent
jurisdiction of an order confirming a plan of
reorganization of the Company under Chapter 11 of the
Bankruptcy Code.
Notwithstanding the foregoing, a "Change in Control"
shall not be deemed to have occurred by virtue of the
consummation of any transaction or series of integrated
transactions immediately following which the record
holders of the common stock of the Company immediately
prior to such transaction or series of transactions
continue to have substantially the same proportionate
ownership in an entity which owns all or substantially
all of the assets of the Company immediately following
such transaction or series of transactions.
For purposes of this Section 1(b), (y) "Person" shall
mean any person or entity other than (I) any employee
plan established by the Company, (II) the Company or any
of its affiliates (as defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), (III) an underwriter temporarily
holding securities pursuant to an offering of such
securities, or (IV) a corporation owned, directly or
indirectly, by stockholders of the Company in
substantially the same proportions as their ownership of
the Company and (z) "Beneficial Owner" shall have the
meaning set forth in Rule 12d-3 under the Exchange Act."
2. Section 1(f)(v) is hereby deleted in its entirety and replaced
with the following:
"(v) the termination of employment of either Xxxxxxx X.
Xxxxxxx, III or Xxxxxxx X. Xxxxx (I) by the Company
without "Cause," or (II) by Xxxxxxx
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or Xxxxx for "Good Reason" as that term is defined and
applied in their respective change of control
agreements.
3. Section 3(a) is hereby deleted in its entirety and replaced with
the following:
"(a) ENTITLEMENT TO BENEFITS. If a Change of Control of the
Company occurs, the Executive shall be entitled to the
benefits provided in Section 4 hereof upon his
termination of employment with the Company within two
years after the date of the Change of Control, unless
such termination is (i) by the Company for Cause, or
(ii) by the Executive other than for Good Reason. A
termination of the Executive's employment that entitles
the Executive to the payment of benefits under Section 4
hereof shall be referred to hereinafter as a
"Termination." "
4. The introductory paragraph of Section 4 is hereby amended by
deleting the phrase "three-year period" and substituting in its
place "two-year period".
5. Section 4(b) is hereby amended by deleting the phrase "three
(3)" and substituting in its place "two (2)".
The Change of Control Agreement, except as amended and modified above,
remains in full force and effect and shall be otherwise unaffected hereby.
METROCALL, INC.
Date: By: /s/XXXXXXX X. XXXXXX, III
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Xxxxxxx X. Xxxxxx, III
Chairman of the Compensation Committee
Date: By: /s/XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
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