EXHIBIT 10.11
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 dated August , 1998 hereby amends the Rights
Agreement dated as of October 13, 1995 (the "Agreement"), between Arch
Communications Group, Inc., a Delaware corporation (the "Company"), and The Bank
of New York, a national banking association, as Rights Agent (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, no Person has become an Acquiring Person as such terms are defined
in the Agreement; and
WHEREAS, the Company has directed the Rights Agent to enter into this
Amendment No. 2 pursuant to Section 27 of the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the parties hereby agree as follows:
1. Section 1(ii) of the Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
(ii) "Exempted Person" shall mean: (A) Sandler Capital Partners IV,
L.P. and Sandler Capital Partners IV FTE, L.P. (collectively,
"Sandler"), unless and until the earlier of (I) such time as Sandler,
together with its Affiliates, directly or indirectly, becomes the
Beneficial Owner of more than 22% of the Common Stock then outstanding
(or such greater percentage as may result solely from the acquisition
of shares of the Company's Series C Convertible Preferred Stock or
shares of Common Stock issued to effect the payment of dividends,
conversion or redemption thereof) (the "Sandler Exempt Threshold") or
(II) the Effective Time (as defined below), in which event Sandler
immediately shall cease to be an Exempted Person; (B) X. X. Xxxx Asset
Management Co., L.L.C., together with its Affiliates (collectively,
"Xxxx"), unless and until such time as Xxxx, directly or indirectly,
becomes the Beneficial Owner of Common Stock in excess of the Xxxx
Exempt Threshold (as defined below), in which event Xxxx immediately
shall cease to be an Exempted Person; (C) Credit Suisse First Boston
Corporation, together with its Affiliates (collectively, "CS First
Boston"), unless and until such time as CS First Boston, directly or
indirectly, becomes the Beneficial Owner of Common Stock in excess of
the CS First Boston Exempt Threshold (as
defined below), in which event CS First Boston immediately shall cease
to be an Exempted Person; and (D) Whippoorwill Associates, Inc.,
together with its Affiliates, including, without limitation, any
accounts and investment funds managed by it or its Affiliates
(collectively, "Whippoorwill"), unless and until such time as
Whippoorwill, directly or indirectly, becomes the Beneficial Owner of
Common Stock in excess of the Whippoorwill Exempt Threshold (as
defined below), in which case Whippoorwill immediately shall cease to
be an Exempted Person. For purposes of this Agreement, the Xxxx Exempt
Threshold shall mean the lesser of (I) 28% of the Common Stock then
outstanding or (II) a percentage of the Common Stock then outstanding
equal to (x) that percentage of shares of Common Stock directly or
indirectly Beneficially Owned by Xxxx immediately after the Effective
Time plus (y) 5%; the CS First Boston Exempt Threshold shall mean the
lesser of (I) 22% of the Common Stock then outstanding or (II) a
percentage of the Common Stock then outstanding equal to (x) that
percentage of shares of Common Stock directly or indirectly
Beneficially Owned by CS First Boston immediately after the Effective
Time plus (y) 5%; and the Whippoorwill Exempt Threshold shall mean the
lesser of (I) 23% of the Common Stock then outstanding or (II) a
percentage of the Common Stock then outstanding equal to (x) that
percentage of shares of Common Stock directly or indirectly
Beneficially Owned by Whippoorwill immediately after the Effective
Time plus (y) 5%. The Sandler Exempt Threshold, the Xxxx Exempt
Threshold, the CS First Boston Exempt Threshold and the Whippoorwill
Exempt Threshold are collectively referred to herein as the "Exempt
Threshold." For purposes of this Section 1(ii), none of Xxxx, XX First
Boston or Whippoorwill shall be deemed the Beneficial Owner of any
shares of Common Stock that are Beneficially Owned by any other Person
solely as a result of any such Person's execution and performance of
any Standby Purchase Commitment (as such term is defined in the Plan
and Agreement of Merger between the Company, Farm Team Corp., a
wholly-owned Subsidiary of the Company, MobileMedia Corporation and
MobileMedia Communications, Inc., dated as of August 18, 1998) (the
"Merger Agreement"). For purposes of this Agreement the Effective Time
shall have the meaning ascribed to such term in the Merger Agreement.
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2. Section 11(a)(ii) of the Agreement is hereby deleted and the following
substituted in lieu thereof:
(a)(ii)Subject to Section 24 of this Agreement, in the event that any
Person shall become an Acquiring Person, unless the event causing the
15% threshold (or, in the case of an Exempted Person, the applicable
Exempt Threshold) to be crossed is a transaction set forth in Section
13(a) hereof, or is a Permitted Offer, then, promptly following the
first occurrence of such event, proper provisions shall be made so
that each holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of a number of one one-thousandths of
a share of Preferred Stock, such number of shares of Common Stock of
the Company that equals the result obtained by (x) multiplying the
then current Purchase Price by the then number of one one-thousandths
of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by 50% of the
current market price (determined pursuant to Section 11(d) hereof) per
share of Common Stock on the date of such occurrence (such number of
shares, the "Adjustment Shares").
3. Section 29 of the Agreement is hereby amended by adding the following at
the end thereof:
With respect to any action to be taken by the Board of Directors of
the Company to (i) redeem the Rights pursuant to Section 23, (ii)
ordering the exchange of any Rights pursuant to Section 24 or (iii)
amending the definition of "Acquiring Person" in Section 1(a) or
"Exempt Threshold" in Section 1(ii) to increase the number of shares
of Common Stock that may be Beneficially Owned by a Person without
becoming an Acquiring Person, such action must be taken by the
affirmative vote of directors equal to (x) a majority of the directors
then in office, plus (y) one.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be duly
executed and their respective corporate seals to be hereunto affixed and
attested as of the day and year first written above.
ARCH COMMUNICATIONS GROUP, INC.
Attest:
/s/ J. Xxx Xxxxxx By: /s/ X.X. Xxxxx, Xx.
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Name: J. Xxx Xxxxxx Name: X.X. Xxxxx, Xx.
Title: Executive Vice President Title: Chairman of the Board and
and Chief Financial Chief Executive Officer
Officer
Seal
THE BANK OF NEW YORK
Attest:
/s/ Xxxxxx X. Debrent By: /s/ Xxxxx Xxxxx
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Name: Xxxxxx X. Debrent Name: Xxxxx Xxxxx
Title: Vice President Title: Vice President
Seal
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