EXHIBIT 1.01
CONFORMED COPY
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RESTRUCTURING AND SECTION 303 AGREEMENT
BETWEEN
WEBLINK WIRELESS, INC.
AND
METROCALL, INC.
DATED AS OF APRIL 1, 2001
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TABLE OF CONTENTS
ARTICLE I MERGER; CLOSING; EFFECTIVE TIME.....................................1
1.1 Merger......................................................1
1.2 Closing.....................................................2
1.3 Effective Time..............................................2
ARTICLE II CERTIFICATE OF INCORPORATION AND BYLAWS OF THE
SURVIVING CORPORATION.........................................................2
2.1 Certificate of Incorporation................................2
2.2 Bylaws......................................................2
ARTICLE III DIRECTORS AND OFFICERS............................................3
3.1 Directors of the Surviving Corporation......................3
3.2 Officers of the Surviving Corporation.......................3
3.3 Name of Surviving Corporation...............................3
3.4 Headquarters................................................3
3.5 Key Facilities..............................................3
ARTICLE IV EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES....4
4.1 Effect on Capital Stock.....................................4
4.2 Exchange of Certificates....................................7
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................8
5.1 Representations and Warranties of Weblink...................8
5.2 Representations and Warranties of Metrocall................22
ARTICLE VI COVENANTS.........................................................34
6.1 Interim Operations.........................................34
6.2 Acquisition Proposals......................................38
6.3 Information Supplied.......................................41
6.4 Other Actions; Notification................................41
6.5 Access; Consultation.......................................43
6.6 Underwriters...............................................43
6.7 Listing Application........................................43
6.8 Publicity..................................................44
6.9 Benefits...................................................44
6.10 Expenses...................................................45
6.11 Indemnification; Directors' and Officers' Insurance........45
6.12 Confidentiality............................................47
6.13 Strategic Alliance Agreement...............................47
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6.14 Bankruptcy Provisions for Weblink..........................47
6.15 Bankruptcy Provisions for Metrocall........................50
6.16 Other Bankruptcy Matters...................................53
6.17 Senior Credit Facility.....................................54
6.18 Rights Agreements..........................................54
6.19 SEC Filings................................................54
6.20 Employment Agreements......................................55
ARTICLE VII CONDITIONS.......................................................55
7.1 Conditions to Each Party's Obligation to Effect the Merger.55
7.2 Conditions to Obligations of Metrocall.....................56
7.3 Conditions to Obligation of Weblink........................57
ARTICLE VIII TERMINATION.....................................................58
8.1 Termination by Mutual Consent..............................58
8.2 Automatic Termination......................................58
8.3 Termination by Either Metrocall or Weblink.................58
8.4 Termination by Weblink.....................................59
8.5 Termination by Metrocall...................................60
8.6 Effect of Termination and Abandonment......................63
ARTICLE IX MISCELLANEOUS AND GENERAL.........................................65
9.1 Survival...................................................65
9.2 Modification or Amendment..................................65
9.3 Waiver of Conditions.......................................65
9.4 Counterparts...............................................66
9.5 Governing Law and Venue; Waiver of Jury Trial..............66
9.6 Notices....................................................67
9.7 Entire Agreement...........................................68
9.8 No Third Party Beneficiaries...............................68
9.9 Obligations of Metrocall and of Weblink....................68
9.10 Severability...............................................69
9.11 Interpretation.............................................69
9.12 Captions...................................................69
9.13 Assignment.................................................69
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INDEX OF DEFINED TERMS
Acquisition Proposal 6.2(a)
Agreement Introduction
Alliance Agreement 6.13
Alliance Assumption Orders 6.14(e)
Amended Alliance Agreement 6.1(c)
Audit Date 5.1(f)
Bankruptcy and Equity Exception 5.1(c)
Bankruptcy Code 6.14(a)
Bylaws 2.2
Certificate 4.2(a)
Certificate of Merger 1.3
Charter 2.1
Closing 1.2
Closing Date 1.2
Communications Act 5.1(d)(i)
Compensation and Benefit Plans 5.1(h)(i)
Confidentiality Agreement 6.12
Contracts 5.1(d)(ii)
Costs 6.11(a)
Current Premium 6.11(c)
D&O Insurance 6.11(c)
DGCL Recitals
DIP Financing 8.5(m)
Effective Time 1.3
Environmental Law 5.1(m)
ERISA 5.1(h)(i)
ERISA Affiliate 5.1(h)(i)
Exchange Act 5.1(b)(iii)
Excluded Metrocall Security 4.1(b)
Excluded Weblink Security 4.1(a)
Executory Contract 6.14(j)
FCC 5.1(d)(i)
FCC Regulations 5.1(d)(i)
Final Order 7.1(a)
GAAP 5.1(e)
Governmental Entity 5.1(d)(i)
Governmental Regulations 5.1(d)(i)
Hazardous Substance 5.1(m)
HSR Act 5.1(d)(i)
Indemnified Parties 6.11(a)
IRS 5.1(h)(ii)
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Laws 5.1(i)(i)
Material Adverse Effect 5.1(a)
Merger Recitals
Metrocall Introduction
Metrocall 10 3/8% Notes 4.1(b)
Metrocall 11% Notes 4.1(b)
Metrocall 1145 Underwriter Agreement 6.6
Metrocall 11 7/8% Notes 4.1(b)
Metrocall 9 3/4% Notes 4.1(b)
Metrocall Alliance Assumption Motion 6.15(e)
Metrocall Alliance Assumption Order 6.15(e)
Metrocall Bankruptcy Cases 6.15(a)
Metrocall Bankruptcy Court 6.15(f)
Metrocall Common Shareholders 4.1(b)
Metrocall Common Stock 4.1(b)
Metrocall Confirmation Order 6.15(g)
Metrocall Disclosure Letter 5.2
Metrocall Disclosure Statement 6.15(c)
Metrocall Filed Reports 5.2(e)(i)
Metrocall Initial Merger Motion 6.15(e)
Metrocall Initial Merger Order 6.15(e)
Metrocall Involuntary Insolvency Event 6.15(b)(i)
Metrocall Knowledgeable Executives 5.2(e)(ii)
Metrocall Notes 4.1(b)
Metrocall Permits 5.2(i)(ii)
Metrocall Prearranged Plan 4.1(b)
Metrocall Preferred Shareholders 4.1(b)
Metrocall Required Consents 5.2(d)(i)
Metrocall Rights Agreement 5.2(j)
Metrocall Secured Creditors 6.17
Metrocall Series A Preferred Stock 4.1(b)
Metrocall Shareholders 4.1(b)
Metrocall Stock Plan 5.2(b)(ii)
Metrocall Target Filing Date 6.15(a)
Metrocall Termination Fee 8.6(c)
NASDAQ 6.7
New Common Stock 4.1(a)
New Share Number 4.1(a)
Old Metrocall Certificate 4.1(b)
Old Weblink Certificate 4.1(a)
Order 7.1(b)
Ordinary Course of Business 6.1(b)(x)
Pension Plan 5.1(h)(ii)
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Permits 5.1(i)(ii)
Person 5.1(a)
PUC 5.1(d)(i)
Representatives 6.2(a)(iii)
SEC 5.1(e)(i)
Section 1145 Underwriters 6.6
Securities Act 5.1(d)(i)
Significant Investees 5.1(d)(ii)
Significant Subsidiary 5.1(b)(iii)
State Laws 5.1(d)(i)
Subsidiary 5.1(a)
Superior Proposal 6.2(a)(iii)(1)
Surviving Corporation 1.1
Takeover Statute 5.1(j)
Tax 5.1(k)
Tax Return 5.1(k)
Taxable 5.1(k)
Taxes 5.1(k)
Termination Date 8.3
Weblink Introduction
Weblink 11 1/4% Notes 4.1(a)
Weblink 1145 Underwriter Agreement 6.6
Weblink 15% Notes 4.1(a)
Weblink Alliance Assumption Motion 6.14(e)
Weblink Alliance Assumption Order 6.14(e)
Weblink Bankruptcy Cases 6.14(a)
Weblink Bankruptcy Court 6.14(f)
Weblink Common Stock 4.1(a)
Weblink Confirmation Order 6.14(g)
Weblink Disclosure Letter 5.1
Weblink Disclosure Statement 6.14(c)
Weblink Filed Reports 5.1(e)(i)
Weblink Glenayre Assumption Motion 6.14(e)
Weblink Glenayre Assumption Order 6.14(e)
Weblink Initial Merger Motion 6.14(e)
Weblink Initial Merger Order 6.14(e)
Weblink Involuntary Insolvency Event 6.14(b)(i)
Weblink Knowledgeable Executives 5.1(g)
Weblink Notes 4.1(a)
Weblink Permits 5.1(i)(ii)
Weblink Prearranged Plan 4.1(a)
Weblink Required Consents 5.1(d)(i)
Weblink Secured Creditors 6.17
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Weblink Shareholders 4.1(a)
Weblink Stock Plans 5.1(b)(ii)
Weblink Target Filing Date 6.14(a)
Weblink Termination Fee 8.6(b)
Weblink Unaudited 2000 Financials 5.1(e)
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RESTRUCTURING AND SECTION 303 AGREEMENT
This RESTRUCTURING AND SECTION 303 AGREEMENT ("Agreement"), dated as of
April 1, 2001, between Weblink Wireless, Inc., a Delaware corporation
("Weblink"), and Metrocall, Inc., a Delaware corporation ("Metrocall").
RECITALS
WHEREAS, the respective Boards of Directors of each of Metrocall and
Weblink have approved, recommended and declared advisable the strategic
combination of Metrocall and Weblink pursuant to this Agreement and the Chapter
11 plans of reorganization contemplated hereby;
WHEREAS, the strategic combination will be effected pursuant to Section
303 of the Delaware General Corporation Law (the "DGCL") through the merger of
Weblink with and into Metrocall (the "Merger") upon the terms and subject to
the conditions set forth in this Agreement and in the Chapter 11 plans of
reorganization contemplated hereby;
WHEREAS, each party intends to implement the Merger through a confirmed
plan of reorganization under Chapter 11 of the Bankruptcy Code (as defined in
Section 6.14(a)), and each party will file, and may cause certain of its
material subsidiaries to file, voluntary petitions under chapter 11 in the
United States Bankruptcy Court for the District of Delaware (the "Delaware
Court");
WHEREAS, Metrocall and Weblink desire to make certain representations,
warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
ARTICLE I
MERGER; CLOSING; EFFECTIVE TIME
1.1 Merger.
Upon the terms and subject to the conditions set forth in this Agreement,
the Weblink Prearranged Plan (as defined in Section 4.1(a)) and the Metrocall
Prearranged Plan (as defined in Section 4.1(b)), at the Effective Time (as
defined in Section 1.3), Weblink shall be merged with and into Metrocall and
the separate corporate existence of Weblink shall thereupon cease. Metrocall
shall be the surviving corporation in the Merger (sometimes referred to as the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of
Delaware, and the separate corporate existence of Metrocall as the Surviving
Corporation, with all its rights, privileges, immunities, powers and
franchises, shall continue unaffected by the Merger. The Merger shall have the
effects specified in Sections 259 and 303 of the DGCL.
1.2 Closing.
The closing of the Merger (the "Closing") shall take place: (i) at the
offices of Xxxxxx, Xxxxxx & Xxxxxxxxx, 0000 X Xxxxxx, Xxxxxxxxxx, XX, at 9:00
A.M., local time, on the second business day after the date on which the last
to be fulfilled or waived of the conditions set forth in Article VII (other
than those conditions that by their nature are to be satisfied at the Closing,
but subject to the fulfillment or waiver of those conditions) shall be
satisfied or waived in accordance with this Agreement; or (ii) at such other
place and time and/or on such other date as Metrocall and Weblink may agree in
writing (the "Closing Date").
1.3 Effective Time.
At the Closing, Metrocall and Weblink will cause a Certificate of Merger
(the "Certificate of Merger") to be executed, acknowledged, and filed with the
Secretary of State of the State of Delaware as provided in Section 303 of the
DGCL. The Merger shall become effective at the time when the Certificate of
Merger has been duly filed with the Secretary of State of the State of Delaware
or such other later time as shall be agreed upon by the parties and set forth
in the Certificate of Merger in accordance with the DGCL (the "Effective
Time").
ARTICLE II
CERTIFICATE OF INCORPORATION AND
BYLAWS OF THE SURVIVING CORPORATION
2.1 Certificate of Incorporation.
The certificate of incorporation set forth on Exhibit 2.1 shall be the
certificate of incorporation of the Surviving Corporation (the "Charter"),
until duly amended as provided therein or by applicable law.
2.2 Bylaws.
The bylaws set forth on Exhibit 2.2 shall be the bylaws of the Surviving
Corporation (the "Bylaws"), until thereafter amended as provided therein or by
applicable law.
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ARTICLE III
DIRECTORS AND OFFICERS
3.1 Directors of the Surviving Corporation.
Metrocall shall take all actions necessary (subject to applicable law) to
cause, at the Effective Time, the number of directors comprising the full Board
of Directors of the Surviving Corporation to be comprised of ten directors, (at
least three of whom shall be "independent directors," as such term is defined
in Rule 4200 of the National Association of Securities Dealers, Inc.), five of
which shall be nominated by the Board of Directors of Metrocall (as such Board
was constituted immediately prior to the Effective Time), and five of which
shall be nominated by the Board of Directors of Weblink (as such Board was
constituted immediately prior to the Effective Time), each such person to serve
from the Effective Time until his or her successor has been duly elected and
qualified, or until his or her earlier death, resignation, or removal in
accordance with the Charter and the Bylaws.
3.2 Officers of the Surviving Corporation.
The officers of the Surviving Corporation shall be the persons specified
on Schedule 3.2, in each case until his or her successor has been duly elected
and qualified, or until their earlier death, resignation, or removal in
accordance with the Charter and the Bylaws.
3.3 Name of Surviving Corporation.
The name of the Surviving Corporation shall be "Weblink Wireless, Inc.";
provided that the Board of Directors of the Surviving Corporation shall
determine whether it would be in the best interests of the Surviving
Corporation to change such name following consummation of the transactions
contemplated hereby.
3.4 Headquarters.
The Surviving Corporation shall be headquartered in Alexandria, Virginia.
3.5 Key Facilities.
The Surviving Corporation will maintain the Weblink distribution center in
Dallas, Texas and the Metrocall distribution center in Alexandria, Virginia to
continue to support the distribution channels that will be served out of those
respective cities.
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ARTICLE IV
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
4.1 Effect on Capital Stock.
(a) Weblink.
At the Effective Time, without any action on the part of the holders
of the capital stock of Metrocall or Weblink, other than as set forth in
the Weblink Prearranged Plan, the Merger shall have the effects on the
capital stock of Weblink described under the terms and conditions of the
Weblink Prearranged Plan, including without limitation that (i) 50% of the
New Share Number of shares of new common stock, par value $0.01 (the "New
Common Stock") of the Surviving Corporation shall be distributed, in
accordance with such plan, if and to the extent such plan so provides,
among the holders of (w) common stock of Weblink, par value $0.0001 (such
stock, the "Weblink Common Stock"; such holders, the "Weblink
Shareholders"), (x) Weblink 15% senior discount notes due 2005 issued
under and pursuant to an Indenture, dated as of January 17, 0000, xxxxxxx
Xxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, as Trustee (the
"Weblink 15% Notes"), (y) Weblink 111/4% senior unsecured subordinated
notes due 2008 issued under and pursuant to an Indenture, dated as of
January 28, 0000, xxxxxxx Xxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New
York, as Trustee (the "Weblink 111/4% Notes" and, collectively with the
Weblink 15% Notes, the "Weblink Notes"), and (z) other unsecured
pre-petition claims against Weblink to the extent such claims are not paid
in cash pursuant to authorization of the Weblink Bankruptcy Court during
the Weblink Bankruptcy Cases (as defined in Section 6.14(f)) or pursuant
to the Weblink Prearranged Plan (as defined in Section 4.1(a)), (ii) that
all Weblink Common Stock and Weblink Notes shall no longer be outstanding,
shall be canceled and retired and shall cease to exist, and (iii) each
certificate (each, an "Old Weblink Certificate") formerly representing any
of such Weblink Common Stock or Weblink Notes (other than any Excluded
Weblink Security (defined below)) shall thereafter represent only the
right, if any, to receive the New Common Stock and/or dividends on such
stock in accordance with the Weblink Prearranged Plan. Pursuant to Section
303 of the DGCL and the Weblink Prearranged Plan, the Weblink Shareholders
shall have no statutory right of appraisal in connection with the Merger.
"Excluded Weblink Security" means any Weblink Common Stock or Weblink
Notes held by Metrocall or any wholly owned subsidiary of Metrocall or Weblink,
or in the treasury of Weblink.
"New Share Number" means the number of shares of New Common Stock that the
parties jointly determine should be issued pursuant to the Weblink Prearranged
Plan and the Metrocall Prearranged Plan.
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"Weblink Prearranged Plan" means the "prearranged" plan of
reorganization for Weblink and its Subsidiaries that (1) is prepared by Weblink
and its Subsidiaries in accordance with, and intended by Weblink and its
Subsidiaries to be confirmed under, the provisions of Chapter 11 of the
Bankruptcy Code (including the confirmation requirements set forth in Section
1129 thereof), (2) consists of terms, conditions and provisions, including
assumption of this Agreement by Weblink, that are mutually acceptable to
Metrocall and Weblink (it being understood and agreed that Metrocall will not
unreasonably withhold, condition or delay its consent to such prearranged plan
or to any proposed amendments to provisions of the Weblink Prearranged Plan
except those that are or would be material and adverse to Metrocall and/or the
Surviving Corporation) and are not inconsistent with the terms, conditions and
provisions of this Agreement, and (3) which contains terms intended to
implement such prearranged plan and this Agreement and other terms which are
not inconsistent with such prearranged plan and this Agreement, together with
any and all changes, amendments or modifications to, or restatements of, such
prearranged plan which with respect to material provisions have been agreed to
by Metrocall and Weblink, without regard to whether such changes, amendments,
modifications and restatements are made to the Weblink Prearranged Plan.
(b) Metrocall.
At the Effective Time, without any action on the part of the holders
of the capital stock of Metrocall or Weblink, other than as set forth in
the Metrocall Prearranged Plan, the Merger shall have the effects on the
capital stock of Metrocall described under the terms and conditions of the
Metrocall Prearranged Plan, including without limitation that (i) 50% of
the New Share Number of shares of New Common Stock shall be distributed,
in accordance with such plan, if and to the extent such plan so provides,
among the holders of (t) common stock of Metrocall, par value $0.01 (such
stock, the "Metrocall Common Stock"; such holders, the "Metrocall Common
Shareholders"), (u) Series A Convertible Preferred Stock of Metrocall, par
value $0.01 per share (such stock, "Metrocall Series A Preferred Stock";
such holders, the "Metrocall Preferred Shareholders" and, together with
the Metrocall Common Shareholders, the "Metrocall Shareholders"), (v)
Metrocall's 11-7/8% senior subordinated notes due 2005 issued under and
pursuant to an Indenture, dated as of June 15, 1995, between Metrocall and
First Interstate Bank of Texas, N.A., as Trustee (the "Metrocall 11-7/8%
Notes"), (w) Metrocall's 10-3/8% senior subordinated notes due 2007 issued
under and pursuant to an Indenture, dated as of September 27, 1995,
between Metrocall and First Union National Bank of Virginia, as Trustee
(the "Metrocall 10-3/8% Notes"), (x) Metrocall's 9-3/4% senior
subordinated notes due 2007 issued under and pursuant to an Indenture,
dated as of October 21, 1997, between Metrocall and First Union National
Bank, as Trustee (the "Metrocall 9-3/4% Notes"), (y) Metrocall's 11%
senior subordinated notes due 2008 issued under and pursuant to an
Indenture, dated as of December 22, 1998, between Metrocall and First
Union National Bank, as Trustee (the "Metrocall 11% Notes" and,
collectively with the Metrocall 11-7/8%, 10-3/8% and 9-3/4% Notes, the
"Metrocall Notes"), and (z) other unsecured pre-petition claims to the
extent such claims are not paid
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in cash pursuant to authorization of the Metrocall Bankruptcy Court (as
defined in Section 6.15(f)) during the Metrocall Bankruptcy Cases or
pursuant to the Metrocall Prearranged Plan (as defined in Section 4.1(b)),
(ii) that all Metrocall Common Stock, Metrocall Series A Preferred Stock
and Metrocall Notes shall no longer be outstanding, shall be canceled and
retired and shall cease to exist, and (iii) each certificate (each, an
"Old Metrocall Certificate") formerly representing any of such Metrocall
Common Stock, Metrocall Series A Preferred Stock or Metrocall Notes (other
than any Excluded Metrocall Security (defined below)) shall thereafter
represent only the right, if any, to receive the New Common Stock and/or
dividends on such stock in accordance with the Metrocall Prearranged Plan.
Pursuant to Section 303 of the DGCL and the Metrocall Prearranged Plan,
the Metrocall Shareholders shall have no statutory right of appraisal in
connection with the Merger.
"Excluded Metrocall Security" means any Metrocall Common Stock, Metrocall
Series A Preferred Stock or Metrocall Notes held by Weblink or any wholly owned
subsidiary of Weblink or Metrocall, or in the treasury of Metrocall.
"Metrocall Prearranged Plan" means the "prearranged" plan of
reorganization for Metrocall and its Subsidiaries that (1) is prepared by
Metrocall and its Subsidiaries in accordance with, and intended by Metrocall
and its Subsidiaries to be confirmed under, the provisions of Chapter 11 of the
Bankruptcy Code (including the confirmation requirements set forth in Section
1129 thereof), (2) consists of terms, conditions and provisions that are
mutually acceptable to Metrocall and Weblink (it being understood and agreed
that Weblink will not unreasonably withhold, condition or delay its consent to
such prearranged plan or to any proposed amendments to provisions, including
assumption of this Agreement by Metrocall, of the Metrocall Prearranged Plan
except those that are or would be material and adverse to Weblink and/or the
Surviving Corporation) and are not inconsistent with the terms, conditions and
provisions of this Agreement, and (3) which contains terms intended to
implement such prearranged plan and this Agreement and other terms which are
not inconsistent with such prearranged plan and this Agreement, together with
any and all changes, amendments or modifications to, or restatements of, such
prearranged plan which with respect to material provisions have been agreed to
by Metrocall and Weblink, without regard to whether such changes, amendments,
modifications and restatements are made to the Metrocall Prearranged Plan.
(c) Cost Allocation.
Notwithstanding any provision of this Agreement or this Section 4.1, the
cost of synergies and business rationalization will be allocated between
Metrocall and Weblink in the same proportion as the equity of the Surviving
Corporation. Unsecured prepetition claims of a similar type will be treated
similarly in the Weblink Prearranged Plan and the Metrocall Prearranged Plan.
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4.2 Exchange of Certificates.
(a) Exchange Procedures.
Each holder of record of an Old Weblink Certificate or an Old
Metrocall Certificate (each, a "Certificate") shall receive New Common
Stock in accordance with the Weblink Prearranged Plan or the Metrocall
Prearranged Plan, as the case may be, and this Section 4.2.
(b) Fractional Shares.
Notwithstanding any other provision of this Agreement to the
contrary, there shall be no entitlement to any certificates, scrip or cash
payment for any fractional share of New Common Stock, with such New Common
Stock being rounded to the nearest whole number.
(c) Termination of Exchange Period; Unclaimed Stock.
Any shares of New Common Stock, and any portion of the dividends or
other distributions with respect to the New Common Stock deposited by the
Surviving Corporation 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 Surviving Corporation and shall be registered in the name of the
Surviving Corporation. Any property remaining unclaimed six months from
the Effective Time shall become the property of the Surviving Corporation
in accordance with Section 347(b) of the Bankruptcy Code. Notwithstanding
the foregoing, none of Metrocall, Weblink, the Surviving Corporation, 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.
(d) Underwriters.
Notwithstanding anything in this Agreement to the contrary,
Certificates surrendered for exchange by any person who is an
"underwriter" pursuant to Section 1145 of the Bankruptcy Code (as
determined pursuant to Section 6.6) of Weblink or Metrocall shall not be
exchanged until Metrocall has received a written agreement from such
Person as provided in Section 6.6.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Weblink.
Except as set forth in the corresponding sections or subsections of the
disclosure letter, dated as of the date of this Agreement, and delivered by
Weblink to Metrocall (the "Weblink Disclosure Letter"), Weblink represents and
warrants to Metrocall that:
(a) Organization, Good Standing and Qualification.
Each of Weblink and its Subsidiaries is a corporation duly organized,
validly existing, and in good standing under the laws of its respective
jurisdiction of organization and has all requisite corporate or similar
power and authority to own and operate its properties and assets and to
carry on its business as presently conducted, and is qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction where the ownership or operation of its properties or conduct
of its business requires such qualification, except when the failure to be
so qualified or in good standing, when taken together with all other such
failures, is not reasonably likely to have a Material Adverse Effect on
Weblink. Weblink has made available to Metrocall a complete and correct
copy of its certificate of incorporation and bylaws, each as amended to
date. Such certificate of incorporation and bylaws are in full force and
effect.
"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.
"Subsidiary" means, with respect to an Person, any entity, whether
incorporated or unincorporated, of which at least a majority of the securities
or other ownership interests having by their terms ordinary voting power to
elect at least a majority of the Board of Directors or other persons performing
similar functions is directly or indirectly owned by such Person.
"Material Adverse Effect" means, with respect to any Person, a material
adverse effect on the business, assets (including licenses, franchises and
other intangible assets), financial condition and results of operations of such
Person and its Subsidiaries, taken as a whole; provided, however, that Material
Adverse Effect shall exclude any effect resulting from, or related to, changes
or developments involving: (1) change arising out of any proposed or adopted
legislation, or any other proposal or enactment by any governmental,
regulatory, or administrative authority; (2) general conditions applicable to
the U.S. economy, including changes in interest rates; (3) conditions affecting
the U.S. wireless telecommunications industry; (4) the commencement and conduct
of the Bankruptcy Cases as referenced in and contemplated by this Agreement;
(5) defaults under any Permits or contracts occasioned by the filing of the
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Bankruptcy Cases; and (6) the usual and ordinary consequences of the filing by
a debtor of bankruptcy cases contemplating a reorganization of the debtor's
assets.
(b) Capital Structure.
(i) The authorized capital stock of Weblink consists of
75,000,000 shares of Weblink Common Stock, with a par value of
$0.0001, of which 46,517,472 shares of Weblink Common Stock were
issued and 46,509,472 shares of Weblink Common Stock were outstanding
and 8,000 shares of Weblink Common Stock were held in treasury at
cost as of the close of business on January 31, 2001 and 10,000,000
shares of preferred stock. As of January 31, 2001, of the 46,509,472
shares of Weblink Common Stock outstanding, (1) 42,568,859 shares
were designated Weblink Class A Common Stock, (2) 3,809,363 shares
were designated Weblink Class B Common Stock, (3) zero shares were
designated Weblink Class C Common Stock, and (4) 131,250 shares were
designated Weblink Class D Common Stock. No shares of preferred stock
are outstanding. All of the outstanding shares of Weblink Common
Stock have been duly authorized and are validly issued, fully paid
and nonassessable. Other than Weblink Common Stock subject to
issuance as set forth below, Weblink has not authorized, issued, or
reserved for issuance any common stock, preferred stock, or other
shares of capital stock as of the date of this Agreement.
(ii) In September 2000, Weblink issued a warrant for the
purchase of 500,000 shares of Weblink Class A Common Stock at an
exercise price of $9.60 per share. As of January 31, 2001, there were
7,656,345 shares of Weblink Common Stock that Weblink was obligated
to issue pursuant to Weblink's stock plans, at weighted average
exercise prices set forth in the Weblink Unaudited 2000 Financials
(as defined in Section 5.1(e)), each of such plans is listed in
Section 5.1(b) of the Weblink Disclosure Letter (collectively the
"Weblink Stock Plans"), 399,740 shares of Weblink Common Stock that
Weblink was obligated to issue pursuant to outstanding warrants
having an expiration date of December 31, 2003 and an effective
exercise price of $5.50 per share of Weblink Common Stock, and
206,748 shares of Weblink Common Stock that Weblink was obligated to
issue pursuant to outstanding warrants having an expiration date of
March 21, 2005 and an effective exercise price of $10.00 per share of
Weblink Common Stock.
(iii) Each of the outstanding shares of capital stock or other
securities of each of Weblink's Significant Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and owned by
Weblink or a direct or indirect wholly owned Subsidiary of Weblink.
9
"Significant Subsidiary" has, as to any Person, the meaning given it in
Rule 1.02(w) of Regulation S-X promulgated pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(iv) Except as set forth above, there are no preemptive or other
outstanding rights, options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights,
agreements, arrangements or commitments to issue or sell any shares
of capital stock or other securities of Weblink or any of its
Significant Subsidiaries or any securities or obligations convertible
or exchangeable into, or exercisable for, or giving any Person a
right to subscribe for or acquire, any securities of Weblink or any
of its Significant Subsidiaries, and no securities or obligations
evidencing such rights are authorized, issued or outstanding. Weblink
does not have outstanding any bonds, debentures, notes or other debt
obligations, the holders of which have the right to vote (or
convertible into or exercisable for securities having the right to
vote) with the stockholders of Weblink on any matter. No shares of
Weblink Common Stock are held by a Subsidiary of Weblink.
(c) Corporate Authority; Approval.
Subject only to the filing and confirmation of the Weblink
Prearranged Plan and to the receipt of the Weblink Required Consents (as
defined in Section 5.1(d)(i)), Weblink has all requisite corporate power
and authority and has taken all corporate action necessary in order to
execute, deliver and perform its obligations under this Agreement to
consummate the Merger. This Agreement has been duly executed and delivered
by Weblink and is a valid and binding agreement of Weblink, enforceable
against Weblink in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles (the
"Bankruptcy and Equity Exception"). The Board of Directors of Weblink has
unanimously approved and declared advisable this Agreement and the other
transactions contemplated by this Agreement.
(d) Government Filings; No Violations.
(i) Other than the filings, notices and/or approvals: (A)
pursuant to Section 1.3, or, in connection with the Weblink
Bankruptcy Cases, the Weblink Prearranged Plan and the Weblink
Confirmation Order; (B) under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the Exchange
Act, and the Securities Act of 1933, as amended (the "Securities
Act"); (C) of the Federal Communications Commission (the "FCC")
pursuant to the Communications Act of 1934, as amended (the
"Communications Act"), or the rules, regulations, and policies of the
FCC (the
10
"FCC Regulations"); (D) of any state public utility commissions or
similar state regulatory bodies (each, a "PUC") identified in the
Weblink Disclosure Letter pursuant to applicable state Laws (as
defined in Section 5.1(i)(i)) regulating the paging or other
telecommunications business (the "State Laws"); (E) to comply with
state securities or "blue-sky" laws; and (F) of any local, state or
federal governmental authorities required for a change in ownership
of transmission sites (all of such filings and/or notices being
referred to as the "Weblink Required Consents"), no notices, reports
or other filings are required to be made by Weblink with, nor are any
consents, registrations, approvals, permits or authorizations
required to be obtained by Weblink from, any governmental or
regulatory authority, court, agency, commission, body or other
governmental entity ("Governmental Entity"), in connection with the
execution and delivery of this Agreement by Weblink and the
consummation by Weblink of the Merger and the other transactions
contemplated by this Agreement, except those that the failure to make
or obtain are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect on Weblink or prevent,
materially delay or materially impair its ability to consummate the
transactions contemplated by this Agreement.
"Governmental Regulations" mean the HSR Act, the Communications Act, the
FCC Regulations, State Laws, and any other antitrust, competition, or
telecommunications Law of the United States of America or any other nation,
province, territory or jurisdiction that must be satisfied or complied with in
order to consummate and make effective the Merger and the other transactions
contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement
by Weblink does not, and the consummation by Weblink of the Merger
and the other transactions contemplated by this Agreement will not
constitute or result in: (A) a breach or violation of, or a default
under, its certificate of incorporation or bylaws or the comparable
governing instruments of any of its Significant Subsidiaries or any
entity in which it has an equity interest of 20% or more
(collectively, with Significant Subsidiaries, "Significant
Investees"); (B) a breach or violation of, or a default under, the
acceleration of any obligations or the creation of a lien, pledge,
security interest or other encumbrance on its assets or the assets of
any of its Significant Investees (with or without notice, lapse of
time or both) pursuant to, any agreement, lease, contract, note,
mortgage, indenture, arrangement or other obligation ("Contracts")
binding upon it or any of its Significant Investees or any Law or
governmental or non-governmental permit or license to which it or any
of its Significant Investees is subject or is a party; or (C) give
rise to a right of termination, cancellation or to a loss of any
benefit to which Weblink or any of its Significant Investees is
entitled under any Contracts to which Weblink or any of its
Significant Investees is subject or is a party, except for such
defaults, breaches, violations or accelerations as may result from
the
11
Weblink Bankruptcy Cases or the Weblink Prearranged Plan, and except,
in the case of clauses (B) or (C) above for any breach, violation,
default, acceleration, creation, right of termination, cancellation
or loss that, individually or in the aggregate, is not reasonably
likely to have a Material Adverse Effect on it or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
(e) Reports; Financial Statements.
(i) Weblink has made available to Metrocall each registration
statement, report, proxy statement or information statement prepared
by Weblink since December 31, 1998, including without limitation its
Annual Report on Form 10-K for the years ended December 31, 1998 and
December 31, 1999 in the form (including exhibits, annexes and any
amendments thereto) filed with the Securities and Exchange Commission
(the "SEC") (collectively, the "Weblink Filed Reports" and; any such
reports filed subsequent to the date of this Agreement, including its
Annual Report on Form 10-K for the year ended December 31, 2000, the
"Weblink Reports"). Weblink has also made available to Metrocall its
unaudited financial statements for the year ended December 31, 2000
(the "Weblink Unaudited 2000 Financials").
(ii) As of their respective dates, the Weblink Filed Reports
complied, as to form, with all applicable requirements under the
Securities Act, the Exchange Act, and the rules and regulations
thereunder, and (together with any amendments thereto filed prior to
the date hereof) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading. Each of the
consolidated balance sheets included in, or incorporated by reference
into, the Weblink Filed Reports (including the related notes and
schedules) fairly presents the consolidated financial position of
Weblink and its Subsidiaries as of its date and each of the
consolidated statements of operations, stockholders' equity, and of
cash flows included in, or incorporated by reference into, the
Weblink Filed Reports (including any related notes and schedules)
fairly presents the consolidated results of operations, retained
earnings and cash flows, as the case may be, of Weblink and its
Subsidiaries for the periods set forth therein (subject, in the case
of unaudited statements, to notes and normal year-end audit
adjustments that will not be material in amount or effect), in each
case in accordance with generally accepted accounting principles
("GAAP") consistently applied during the periods involved, except as
may be noted therein. Weblink has made available to Metrocall all
material correspondence since December 31, 1998
12
between it or its representatives, on the one hand, and the SEC, on
the other hand. To the knowledge of the Weblink Knowledgeable
Executives, as of the date of this Agreement, there are no pending or
threatened SEC inquiries or investigations relating to it or any of
the Weblink Filed Reports. To the knowledge of its executive officers
identified in the corresponding section of the Weblink Disclosure
Letter (the "Weblink Knowledgeable Executives") and except as
disclosed in the Weblink Filed Reports or in filings by its security
holders with the SEC, as of the date of this Agreement, no Person or
"group" "beneficially owns" 5% or more of its outstanding voting
securities, with the terms "beneficially owns" and "group" having the
meanings ascribed to them under Rule 13d-3 and Rule 13d-5 under the
Exchange Act.
(iii) The Weblink Reports will, when filed, comply as to form
with all applicable requirements under the Securities Act, the
Exchange Act and the rules and regulations thereunder, and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they
were made, not misleading. Each of the consolidated balance sheets
which will be included in, or incorporated by reference into, the
Weblink Reports (including the related notes and schedules) will
fairly present the consolidated financial position of Weblink and its
Subsidiaries as of its date and each of the consolidated statements
of operations, stockholders' equity, and of the cash flows which will
be included in, or incorporated by reference into, the Weblink
Reports (including the related notes and schedules) will fairly
present the consolidated results of operations, retained earnings and
cash flows, as the case may be, of Weblink and its Subsidiaries for
the periods set forth therein (subject, in the case of unaudited
statements, to notes and normal year-end audit adjustments that will
not be material in amount or effect), in each case in accordance with
GAAP consistently applied during the periods involved, except as may
be noted therein.
(iv) The financial statements included in Weblink's Annual
Report on Form 10-K for the year ended December 31, 2000 will, when
filed, be identical in all material respects to the Weblink Unaudited
2000 Financials.
(f) Absence of Certain Changes.
Except as disclosed in the Weblink Filed Reports or as expressly
contemplated by this Agreement or except as is not prohibited after the
date hereof by Section 6.1 (or as otherwise permitted by Section 6.1),
since December 31, 2000 (the "Audit Date"), Weblink and its Subsidiaries
have conducted their respective businesses only in, and have not engaged
in any material transaction other than according to, the ordinary course
of such businesses and there has not been: (i) any change in the business,
assets (including licenses, franchises and other intangible assets),
financial condition and results of
13
operations of Weblink and its Subsidiaries, except those changes that are
not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on Weblink; (ii) any damage, destruction or other
casualty loss with respect to any asset or property owned, leased or
otherwise used by Weblink or any of its Subsidiaries, whether or not
covered by insurance, which damage, destruction or loss is reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect on Weblink; (iii) any declaration, setting aside or payment of any
dividend or other distribution with respect to its capital stock; or (iv)
any change by Weblink in accounting principles, practices or methods,
except as required by GAAP. Since the Audit Date, except as provided for
in this Agreement, in the Weblink Disclosure Letter, or as disclosed in
the Weblink Filed Reports, there has not been any increase in the salary,
wage, bonus, grants, awards, benefits or other compensation payable or
that could become payable by Weblink or any of its respective
Subsidiaries, to directors, officers or key employees as identified in the
corresponding section of the Weblink Disclosure Letter or any amendment of
any of Weblink's Compensation and Benefit Plans (as defined in Section
5.1(h)(i)), other than increases or amendments in the ordinary course of
its business (which may include normal periodic performance reviews and
related compensation and benefit increases and the provision of new
individual compensation and benefits for promoted or newly hired officers
and employees on terms consistent with past practice).
(g) Litigation and Liabilities.
Except as disclosed in the Weblink Filed Reports, as of the date
hereof, there are no: (1) civil, criminal or administrative actions,
suits, claims, hearings, investigations or proceedings pending or, to the
knowledge of the Weblink Knowledgeable Executives, threatened against
Weblink or any of its Subsidiaries; or (2) obligations or liabilities,
whether or not accrued, contingent or otherwise, and whether or not
required to be disclosed, except as would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on
Weblink or prevent, materially delay or materially impair its ability to
consummate the transactions contemplated by this Agreement.
(h) Employee Benefits.
(i) Neither Weblink nor any of its respective ERISA Affiliates
(as defined below) maintains, is a party to, participates in, or has
any liability or contingent liability with respect to, any employee
benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
bonus, deferred compensation, pension, retirement, profit-sharing,
thrift, savings, employee stock ownership, stock bonus,
change-of-control, stock purchase, restricted stock, stock option,
employment, consulting, termination, severance, compensation,
medical, health or fringe benefit plan, or other plan, program,
agreement, policy or arrangement for any of its agents, consultants,
employees, directors, former employees or former
14
directors and/or any of its respective ERISA Affiliates which does
not constitute an employee benefit plan under ERISA (which employee
benefit plans and other plans, programs, agreements, policies and
arrangements are collectively referred to as the "Compensation and
Benefit Plans"). A true and correct copy of each Compensation and
Benefit Plan of Weblink which has been reduced to writing and, to the
extent applicable, copies of the most recent annual report, actuarial
report, accountant's opinion of the plan's financial statements,
summary plan description and Internal Revenue Service determination
letter with respect to all Compensation and Benefit Plans of Weblink
and any trust agreements or insurance contracts forming a part of
such Compensation and Benefit Plans has been made available by
Weblink to Metrocall prior to the date of this Agreement. In the case
of any Compensation and Benefit Plan of Weblink which is not in
written form, Weblink has supplied to Metrocall an accurate
description of such Compensation and Benefit Plan as in effect on the
date of this Agreement.
"ERISA Affiliate" means any corporation or trade or business which,
together with a Person, is a member of a controlled group of Persons or a group
of trades or businesses under common control with such Person, within the
meaning of Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of
1986, as amended (the "Code").
(ii) All Compensation and Benefit Plans of Weblink, other than a
multiemployer plan (as defined in Section 3(37) of ERISA), are in
substantial compliance with all requirements of applicable law,
including the Code and ERISA and no event has occurred which will or
could cause any such Compensation and Benefit Plan to fail to comply
with such requirements and no notice has been issued by any
governmental authority questioning or challenging such compliance.
There have been no acts or omissions by Weblink or any of its
respective ERISA Affiliates, which have given rise to or may give
rise to material fines, penalties, taxes or related charges under
Section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for
which Weblink or any of its respective ERISA Affiliates may be
liable. Each of the Compensation and Benefit Plans of Weblink that is
an "employee pension benefit plan" within the meaning of Section 3(2)
of ERISA, other than a multiemployer plan (each a "Pension Plan"),
and that is intended to be qualified under Section 401(a) of the Code
has received a favorable determination letter from the Internal
Revenue Service (the "IRS") which covers all changes in law for which
the remedial amendment period (within the meaning of Section 401(b)
of the Code and applicable regulations) has expired and neither
Weblink, nor any of its respective ERISA Affiliates is aware of any
circumstances reasonably likely to result in revocation of any such
favorable determination letter. There is no pending or, to the
knowledge of the Weblink Knowledgeable Executives, threatened
material litigation relating to its Compensation and Benefit Plans of
Weblink. Neither Weblink, nor any of its respective ERISA Affiliates,
has engaged in a transaction with respect to any of the Compensation
and Benefit
15
Plans of Weblink that, assuming the taxable period of such
transaction expired as of the date of this Agreement, would subject
it or any of the ERISA Affiliates to a material tax or penalty
imposed by either Section 4975 of the Code or Section 502 of ERISA.
(iii) As of the date of this Agreement, no liability under Title
IV of ERISA (other than the payment of prospective premium amounts to
the Pension Benefit Guaranty Corporation in the normal course) has
been or is expected to be incurred by Weblink or any of its
respective ERISA Affiliates with respect to any Compensation and
Benefit Plan of Weblink. No notice of a "reportable event," within
the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for
any Pension Plans within the 12-month period ending on the date of
this Agreement or will be required to be filed in connection with the
transactions contemplated by this Agreement.
(iv) All contributions required to be made under the terms of
any of the Compensation and Benefit Plans of Weblink as of the date
of this Agreement have been timely made or have been reflected on the
most recent consolidated balance sheet filed or incorporated by
reference in the Weblink Reports prior to the date of this Agreement.
None of the Pension Plans has an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code
or Section 302 of ERISA. Neither Weblink, nor any of its respective
ERISA Affiliates has provided, or is required to provide, security to
any Pension Plans pursuant to Section 401(a)(29) of the Code or to
the PBGC pursuant to Title IV or ERISA.
(v) Under each of the Pension Plans as of the last day of the
most recent plan year ended prior to the date of this Agreement, the
actuarially determined present value of all "benefit liabilities,"
within the meaning of Section 4001(a)(16) of ERISA (as determined on
the basis of the actuarial assumptions contained in such Pension
Plan's most recent actuarial valuation), did not exceed the then
current value of the assets of such Pension Plan, and there has been
no material change in the financial condition of such Pension Plan
since the last day of the most recent plan year.
(vi) Neither Weblink, nor any of its respective ERISA
Affiliates, have any obligations for post-termination health and life
benefits under any of the Compensation and Benefit Plans of Weblink,
except as set forth in the Weblink Reports filed prior to the date of
this Agreement or as required by applicable law.
16
(vii) The consummation of the Merger (or the approval thereof by
the Weblink stockholders) and the other transactions contemplated by
this Agreement, will not (except as may result from, or be
contemplated or authorized by, any order of the Weblink Bankruptcy
Court or the Weblink Prearranged Plan): (x) entitle any of Weblink
employees or directors or any employees of any of its ERISA
Affiliates, as applicable, to severance pay, directly or indirectly,
upon termination of employment or otherwise; (y) accelerate the time
of payment or vesting or trigger any payment of compensation or
benefits under, or increase the amount payable or trigger any other
material obligation pursuant to, any of the Compensation and Benefit
Plans of Weblink; or (z) result in any breach or violation of, or a
default under, any of the Compensation and Benefit Plans of Weblink.
(viii) None of the Compensation and Benefit Plans of Weblink is
a multiemployer plan and neither Weblink, nor any of its respective
ERISA Affiliates, have contributed or been obligated to contribute to
a multiemployer plan at any time.
(i) Compliance with Laws.
(i) Except as set forth in the Weblink Filed Reports, the
businesses of each of Weblink and its Subsidiaries have not since
January 1, 1998 been, and are not being, conducted in violation of
any law, statute, ordinance, regulation, judgment, order, decree,
injunction, arbitration award, license, authorization, opinion,
agency requirement or permit of any Governmental Entity or common law
(collectively, "Laws"), except for violations or possible violations
that are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on Weblink or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement. Except as set forth in the Weblink
Filed Reports, no investigation or review by any Governmental Entity
with respect to Weblink or any of its Subsidiaries is pending or, to
the knowledge of the Weblink Knowledgeable Executives, threatened,
nor has any Governmental Entity indicated an intention to conduct the
same, except for those the outcome of which are not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect
on Weblink or prevent, materially delay or materially impair its
ability to consummate the transactions contemplated by this
Agreement. To the knowledge of the Weblink Knowledgeable Executives,
no material change is required in Weblink or any of its Subsidiaries'
processes, properties or procedures in connection with any such Laws,
and it has not received any notice or communication of any material
noncompliance with any such Laws that has not been cured as of the
date of this Agreement, except for such changes and noncompliance
that are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on
17
Weblink or prevent, materially delay or materially impair its ability
to consummate the transactions contemplated by this Agreement.
(ii) Each of Weblink and its Subsidiaries has all Permits
(collectively, the "Weblink Permits"), necessary to conduct its
business as presently conducted, except for those the absence of
which are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on Weblink or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
"Permits" means all permits, licenses, franchises, variances, exemptions,
orders, operating rights and other governmental authorizations, consents and
approvals.
(j) Takeover Statutes; Charter and Bylaw Provisions.
The Weblink Board of Directors has taken all appropriate and
necessary actions to exempt the Merger, this Agreement and the other
transactions contemplated hereby from the restrictions of Section 203 of
the DGCL. No other "control share acquisition," "fair price," "moratorium"
or other anti-takeover laws or regulations enacted under United States
state or federal laws (each, a "Takeover Statute") apply to the Merger,
this Agreement, or any of the other transactions contemplated hereby.
(k) Taxes.
Weblink and each of its Subsidiaries have prepared in good faith and
duly and timely filed (taking into account any extension of time within
which to file) all Tax Returns required to be filed by any of them and all
such filed Tax Returns are complete and accurate in all material respects.
Weblink and each of its Subsidiaries (i) have paid all Taxes and estimated
Taxes (including all amounts shown to be due on all filed Tax Returns)
that they are required to pay or, where payment is not yet due, has
established (or has had established on its behalf and for its sole benefit
and recourse) in accordance with GAAP an adequate accrual for all Taxes
through the end of the last period for which Weblink and its Subsidiaries
ordinarily record items on their respective books, and (ii) have withheld
or collected all federal, state and local income Taxes, FICA, FUTA and
other Taxes, including, without limitation, similar foreign Taxes,
required to be withheld from amounts owing to any employee, creditor, or
third party, and to the extent required, have paid such amounts to the
proper governmental authority. As of the date of this Agreement, there are
no audits, examinations, investigations or other proceedings pending or
threatened in writing, with respect to Taxes or Tax matters of Weblink or
any of its Subsidiaries. There are no claims or outstanding proposed or
assessed deficiencies concerning Weblink's or any of its Subsidiaries' Tax
liability which have not been settled or otherwise resolved. Neither
Weblink nor any of its Subsidiaries has any liability with respect to
income, franchise or similar Taxes in excess of the amounts accrued with
18
respect to such Taxes that are reflected in the financial statements
included in the Weblink Reports. Neither Weblink nor any of its
Subsidiaries has executed any waiver of any statute of limitations on, or
extended the period for the assessment or collection of, any Tax. There
are no Tax liens (other than liens for current Taxes not yet due and
payable) upon Weblink's assets or the assets of any of its Subsidiaries.
Except as set forth on Section 5.1(k) of the Weblink Disclosure Letter,
there is no "Section 382 limitation," as defined in Section 382(b) of the
Code, currently applicable to Weblink's or its Subsidiaries' net operating
loss, investment credit, or other tax attribute carryforwards. Neither
Weblink nor any of its Subsidiaries: (A) is a party to any Tax sharing
agreement; or (B) is liable for the Tax obligations of any person other
than Weblink or its Subsidiaries. None of Weblink or any of its
Subsidiaries will be required to include any item of income in any taxable
period (or portion thereof) ending after the Closing Date as a result of a
change in a method of accounting for a taxable period ending on or prior
to the Closing Date. Weblink has delivered or made available to Metrocall
true and complete copies of all federal income Tax Returns of Weblink and
each of its Subsidiaries for all periods ending on or after January 1,
1997.
"Tax" (including, with correlative meaning, the terms "Taxes," and
"Taxable") includes all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severance, stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, production, value added, occupancy and other
taxes, duties, charges, fees, or assessments of any nature whatsoever, together
with all interest, penalties and additions imposed with respect to such amounts
and any interest with respect to such penalties and additions.
"Tax Return" includes all federal, state, local and foreign returns and
reports (including elections, declarations, disclosures, schedules, estimates
and information returns) required to be supplied to a governmental authority
relating to Taxes.
(l) Labor Matters.
Neither Weblink nor any of its Subsidiaries is the subject of any
material proceeding asserting that Weblink or any of its Subsidiaries has
committed an unfair labor practice or is seeking to compel Weblink to
bargain with any labor union or labor organization, nor is there pending
or, to the knowledge of the Weblink Knowledgeable Executives, threatened,
nor has there been for the past five years, any labor strike, dispute,
walkout, work stoppage, slow-down or lockout involving Weblink or any of
its Subsidiaries, except in each case as is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on Weblink.
None of the employees of Weblink or any of its Subsidiaries is subject to
a collective bargaining agreement, no collective bargaining agreement is
being negotiated, and no attempt is being made as of the date hereof or
during the past three (3) years has been made to organize any of its
employees to form or enter into any labor union or similar organization.
19
(m) Environmental Matters.
Except as disclosed in the Weblink Filed Reports and except for such
matters that, individually or in the aggregate, are not reasonably likely
to have a Material Adverse Effect on Weblink: (i) to the knowledge of the
Weblink Knowledgeable Executives, each of Weblink and its Subsidiaries has
complied with, and is in compliance with, all applicable Environmental
Laws and each Permit required under Environmental Laws; (ii) to the
knowledge of the Weblink Knowledgeable Executives, the properties
currently owned or operated by Weblink or any of its Subsidiaries
(including soils, groundwater, surface water, buildings, or other
structures) do not contain any Hazardous Substances; (iii) to the
knowledge of the Weblink Knowledgeable Executives, the properties formerly
owned or operated by Weblink or any of its Subsidiaries did not contain
any Hazardous Substances during the period of ownership or operation by it
or any of its Subsidiaries; (iv) neither Weblink nor any of its
Subsidiaries is subject to liability for any Hazardous Substance disposal
or contamination on any third party property; (v) neither Weblink nor any
of its Subsidiaries has been associated with any release or threat of
release of any Hazardous Substance which could result in liability to
Weblink or to any of its Subsidiaries; (vi) neither Weblink nor any of its
Subsidiary has received any notice, demand, letter, claim, or request for
information alleging that Weblink or any of its Subsidiaries may be in
violation of or liable under any Environmental Law; (vii) neither Weblink
nor any of its Subsidiaries is subject to any orders, decrees,
injunctions, or other arrangements with any Governmental Entity or is
subject to any indemnity or other agreement with any third party relating
to liability under any Environmental Law or relating to Hazardous
Substances; and (viii) to the knowledge of the Weblink Knowledgeable
Executives, there are no circumstances or conditions involving Weblink or
any of its Subsidiaries that could reasonably be expected to result in any
claims, liability, investigations, costs, or restrictions on the
ownership, use, or transfer of any of Weblink's properties pursuant to any
Environmental Law.
"Environmental Law" means any Law relating to: (A) the protection,
investigation or restoration of the environment, health, safety, or natural
resources; (B) the handling, use, presence, disposal, release, or threatened
release of any Hazardous Substance; or (C) noise, odor, wetlands, pollution,
contamination, or any injury or threat of injury to persons or property or
notifications to Government Entities or the public in connection with any
Hazardous Substance.
"Hazardous Substance" means any substance that is listed, classified, or
regulated pursuant to any Environmental Law, including any petroleum product or
by-product, asbestos- containing material, lead-containing paint or plumbing,
polychlorinated biphenyls, electromagnetic fields, microwave transmission,
radioactive materials, or radon.
Except as set forth in this Section 5.1(m) and Section 5.1(d) above, no
representations or warranties are being made hereunder by Weblink or any of its
Subsidiaries with respect to environmental matters.
20
(n) Brokers and Finders.
Neither Weblink nor any of its officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage
fees, commissions or finders' fees in connection with the Merger or the
other transactions contemplated in this Agreement, except that Weblink has
employed the persons identified on Schedule 5.1(n) as its financial
advisors, the arrangements with which have been disclosed to Metrocall
prior to the date of this Agreement. The fees (excluding expenses) payable
to all brokers and finders employed by Weblink shall not exceed the amount
set forth on Schedule 5.1(n).
(o) FCC Licenses.
Each of Weblink and its respective Subsidiaries is the authorized and
legal holder of, or otherwise has all rights to, all Permits issued under
or pursuant to the Communications Act, the FCC Regulations, and State Laws
which are necessary for the operation of their respective businesses as
presently operated, except as would not, individually or in aggregate,
have a Materially Adverse Effect on Weblink. All such Permits and licenses
are validly issued and in full force and effect, except as would not,
individually or in the aggregate, have a Material Adverse Effect on
Weblink. Each of Weblink and its respective Subsidiaries is in compliance
in all respects with the terms and conditions of each such Permit and with
all applicable Governmental Regulations, except where the failure to be in
compliance would not have a Material Adverse Effect on Weblink. There is
not pending, and to the knowledge of the Weblink Knowledgeable Executives,
any threatened, action by or before the FCC or any governmental or
regulatory authority to revoke, suspend, cancel, rescind, or modify in any
material respect any of Weblink's Permits rights under the Communications
Act, the FCC Regulations or State Laws. Weblink has made all regulatory
filings required, and paid all fees and assessments imposed, by any
Governmental Entity, and all such filings and the calculation of such
fees, are accurate in all material respects, except where the failure to
make such filing or pay such fees or assessments would not have a Material
Adverse Effect on Weblink.
(p) Contracts.
The Weblink Disclosure Letter sets forth a correct and complete list
of each material distribution or alliance Contract to which it or any of
its Significant Investees is a party. The Weblink Disclosure Letter
accurately summarizes the remaining duration of each such Contract and any
renewal rights possessed by Weblink or any of its Significant Investees
thereunder. As of the date hereof, Weblink is not in breach of any of its
material obligations under the Contracts listed in Section 5.1(p) of the
Weblink Disclosure Letter (other than any such breach by virtue of or as a
result of Weblink's insolvency).
21
5.2 Representations and Warranties of Metrocall.
Except as set forth in the corresponding sections or subsections of the
disclosure letter, dated as of the date of this Agreement, and delivered by
Metrocall to Weblink (the "Metrocall Disclosure Letter"), Metrocall represents
and warrants to Weblink that:
(a) Organization, Good Standing and Qualification.
Each of Metrocall and its Subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of its
respective jurisdiction of organization and has all requisite corporate or
similar power and authority to own and operate its properties and assets
and to carry on its business as presently conducted, and is qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction where the ownership or operation of its properties or conduct
of its business requires such qualification, except when the failure to be
so qualified or in good standing, when taken together with all other such
failures, is not reasonably likely to have a Material Adverse Effect (as
defined below) on Metrocall. Metrocall has made available to Weblink a
complete and correct copy of its certificate of incorporation and bylaws,
each as amended to date. Such certificate of incorporation and bylaws are
in full force and effect.
(b) Capital Structure.
(i) The authorized capital stock of Metrocall consists of (A)
200,000,000 shares of Metrocall Common Stock, of which 89,975,772
shares were issued and outstanding and no shares were held in
treasury as of the close of business on March 29, 2001, and (B)
1,000,000 shares of preferred stock, of which (1) 810,000 shares are
designated Metrocall Series A Convertible Preferred Stock, of which
247,149 shares were issued and outstanding as of the close of
business on March 29, 2001, and (2) 100,000 of which are designated
as Series E Junior Participating Preferred Stock, none of which are
issued or outstanding. All of the outstanding shares of Metrocall
Common Stock and Metrocall Preferred Shares have been duly authorized
and are validly issued, fully paid and nonassessable. Other than
Metrocall Common Stock subject to issuance as set forth below, and
Metrocall Preferred Shares, Metrocall has not authorized, issued, or
reserved for issuance any common stock, preferred stock, or other
shares of capital stock as of the date of this Agreement.
(ii) As of March 29, 2001, there were 10,010,014 shares of
Metrocall Common Stock that Metrocall was obligated to issue pursuant
to Metrocall's stock plans, at a weighted average exercise price of
$4.36 per share of Metrocall Common Stock, each of such plans is
listed in Section 5.2(b)(ii) of the Metrocall Disclosure Letter
(collectively the "Metrocall Stock Plans"), and 1,853,100 shares of
Metrocall Common Stock that Metrocall was obligated to
22
issue pursuant to outstanding warrants having an expiration date of
November 15, 2001 and an effective exercise price of $2.74 per share
of Metrocall Common Stock.
(iii) Each of the outstanding shares of capital stock or other
securities of each of Metrocall's Significant Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and owned by
Metrocall or a direct or indirect wholly owned Subsidiary of
Metrocall.
(iv) Except as set forth above and except pursuant to the
Metrocall Preferred Stock, there are no preemptive or other
outstanding rights, options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights,
agreements, arrangements or commitments to issue or sell any shares
of capital stock or other securities of Metrocall or any of its
Significant Subsidiaries or any securities or obligations convertible
or exchangeable into, or exercisable for, or giving any Person a
right to subscribe for or acquire, any securities of Metrocall or any
of its Significant Subsidiaries, and no securities or obligations
evidencing such rights are authorized, issued or outstanding.
Metrocall does not have outstanding any bonds, debentures, notes or
other debt obligations, the holders of which have the right to vote
(or convertible into or exercisable for securities having the right
to vote) with the stockholders of Metrocall on any matter. No shares
of Metrocall Common Stock or Metrocall Preferred Stock are held by a
Subsidiary of Metrocall.
(c) Corporate Authority; Approval.
Subject only to the filing and confirmation of the Metrocall
Prearranged Plan and to the receipt of Metrocall Required Consents (as
defined in Section 5.2(d)(i)), Metrocall has all requisite corporate power
and authority and has taken all corporate action necessary in order to
execute, deliver and perform its obligations under this Agreement to
consummate the Merger. This Agreement has been duly executed and delivered
by Metrocall and is a valid and binding agreement of Metrocall,
enforceable against Metrocall in accordance with its terms, except as
enforcement may be limited by the Bankruptcy and Equity Exception. The
Board of Directors of Metrocall has unanimously approved and declared
advisable this Agreement and the other transactions contemplated by this
Agreement.
(d) Government Filings; No Violations.
(i) Other than the filings, notices and/or approvals: (A)
pursuant to Section 1.3, or, in connection with the Metrocall
Bankruptcy Cases and the Metrocall Prearranged Plan, the Metrocall
Confirmation Order; (B) under the HSR Act, the Exchange Act, and the
Securities Act; (C) of the FCC pursuant
23
to the Communications Act, or the FCC Regulations; (D) of any PUC
identified in the Metrocall Disclosure Letter pursuant to applicable
State Laws; (E) to comply with state securities or "blue-sky" laws;
and (F) of any local, state or federal governmental authorities
required for a change in ownership of transmission sites (all of such
filings and/or notices being referred to as the "Metrocall Required
Consents"), no notices, reports or other filings are required to be
made by Metrocall with, nor are any consents, registrations,
approvals, permits or authorizations required to be obtained by
Metrocall from, any Governmental Entity, in connection with the
execution and delivery of this Agreement by Metrocall and the
consummation by Metrocall of the Merger and the other transactions
contemplated by this Agreement, except those that the failure to make
or obtain are not, individually or in the aggregate, reasonably
likely to have a Material Adverse Effect on it or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement
by Metrocall does not, and the consummation by Metrocall of the
Merger and the other transactions contemplated by this Agreement will
not, constitute or result in: (A) a breach or violation of, or a
default under, its certificate of incorporation or bylaws or the
comparable governing instruments of any of its Significant Investees;
(B) a breach or violation of, or a default under, the acceleration of
any obligations or the creation of a lien, pledge, security interest
or other encumbrance on its assets or the assets of any of its
Significant Investees (with or without notice, lapse of time or both)
pursuant to, any Contracts binding upon it or any of its Significant
Investees or any Law or governmental or non-governmental permit or
license to which it or any of its Significant Investees is subject or
is a party; or (C) give rise to a right of termination, cancellation
or to a loss of any benefit to which Metrocall or any of its
Significant Investees is entitled under any Contracts to which
Metrocall or any of its Significant Investees is subject or is a
party, except for such defaults, breaches, violations or
accelerations as may result from the Metrocall Bankruptcy Cases or
the Metrocall Prearranged Plan, and except, in the case of clauses
(B) or (C) above for any breach, violation, default, acceleration,
creation, right of termination, cancellation or loss that,
individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect on it or prevent, materially delay or
materially impair its ability to consummate the transactions
contemplated by this Agreement.
(e) Reports; Financial Statements.
(i) Metrocall has made available to Weblink each registration
statement, report, proxy statement or information statement prepared
by Metrocall
24
since December 31, 1998, including without limitation its Annual
Report on Form 10-K for the years ended December 31, 1998 and
December 31, 1999 in the form (including exhibits, annexes and any
amendments thereto) filed with the SEC (collectively, the "Metrocall
Filed Reports" and; any such reports filed subsequent to the date of
this Agreement, including its Annual Report on Form 10-K for the year
ended December 31, 2000, the "Metrocall Reports"). Metrocall has also
made available to Weblink its unaudited financial statements for the
year ended December 31, 2000 (the "Metrocall Unaudited 2000
Financials").
(ii) As of their respective dates, the Metrocall Filed Reports
complied, as to form, with all applicable requirements under the
Securities Act, the Exchange Act, and the rules and regulations
thereunder, and (together with any amendments thereto filed prior to
the date hereof) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading. Each of the
consolidated balance sheets included in, or incorporated by reference
into, the Metrocall Filed Reports (including the related notes and
schedules) fairly presents the consolidated financial position of
Metrocall and its Subsidiaries as of its date and each of the
consolidated statements of operations, stockholders' equity, and of
cash flows included in, or incorporated by reference into, the
Metrocall Filed Reports (including any related notes and schedules)
fairly presents the consolidated results of operations, retained
earnings and cash flows, as the case may be, of Metrocall and its
Subsidiaries for the periods set forth therein (subject, in the case
of unaudited statements, to notes and normal year-end audit
adjustments that will not be material in amount or effect), in each
case in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein. Metrocall has made
available to Weblink all material correspondence since December 31,
1998 between it or its representatives, on the one hand, and the SEC,
on the other hand. To the knowledge of the Metrocall Knowledgeable
Executives, as of the date of this Agreement, there are no pending or
threatened SEC inquiries or investigations relating to it or any of
the Metrocall Filed Reports. To the knowledge of its executive
officers identified in the corresponding section of the Metrocall
Disclosure Letter (the "Metrocall Knowledgeable Executives") and
except as disclosed in the Metrocall Filed Reports or in filings by
its security holders with the SEC, as of the date of this Agreement,
no Person or "group" "beneficially owns" 5% or more of its
outstanding voting securities, with the terms "beneficially owns" and
"group" having the meanings ascribed to them under Rule 13d-3 and
Rule 13d-5 under the Exchange Act.
25
(iii) The Metrocall Reports will, when filed, comply as to form,
with all applicable requirements under the Securities Act, the
Exchange Act, and the rules and regulations thereunder, and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they
were made, not misleading. Each of the consolidated balance sheets
which will be included in, or incorporated by reference into, the
Metrocall Reports (including the related notes and schedules) will
fairly present the consolidated financial position of Metrocall and
its Subsidiaries as of its date and each of the consolidated
statements of operations, stockholders' equity, and of the cash flows
which will be included in, or incorporated by reference into, the
Metrocall Reports (including the related notes and schedules) will
fairly present the consolidated results of operations, retained
earnings and cash flows, as the case may be, of Metrocall and its
Subsidiaries for the periods set forth therein (subject, in the case
of unaudited statements, to notes and normal year-end audit
adjustments that will not be material in amount or effect), in each
case in accordance with GAAP consistently applied during the periods
involved, except as may be noted therein.
(iv) The financial statements included in Metrocall's Annual
Report on Form 10-K for the year ended December 31, 2000 will, when
filed, be identical in all material respects to the Metrocall
Unaudited 2000 Financials.
(f) Absence of Certain Changes.
Except as disclosed in the Metrocall Filed Reports or as expressly
contemplated by this Agreement or except as is not prohibited after the
date hereof by Section 6.1 (or as otherwise permitted by Section 6.1),
since the Audit Date, Metrocall and its Subsidiaries have conducted their
respective businesses only in, and have not engaged in any material
transaction other than according to, the ordinary course of such
businesses and there has not been: (i) any change in the business, assets
(including licenses, franchises and other intangible assets), financial
condition and results of operations of Metrocall and its Subsidiaries,
except those changes that are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on Metrocall; (ii) any
damage, destruction or other casualty loss with respect to any asset or
property owned, leased or otherwise used by Metrocall or any of its
Subsidiaries, whether or not covered by insurance, which damage,
destruction or loss is reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect on Metrocall; (iii) any
declaration, setting aside or payment of any dividend or other
distribution with respect to its capital stock; or (iv) any change by
Metrocall in accounting principles, practices or methods, except as
required by GAAP. Since the Audit Date, except as provided for in this
Agreement, in the Metrocall Disclosure Letter, or as disclosed in the
Metrocall Filed Reports, there has not been any increase in the salary,
wage, bonus, grants, awards, benefits or other
26
compensation payable or that could become payable by Metrocall or any of
its respective Subsidiaries, to directors, officers or key employees as
identified in the corresponding section of the Metrocall Disclosure Letter
or any amendment of any of Metrocall's Compensation and Benefit Plans,
other than increases or amendments in the ordinary course of its business
(which may include normal periodic performance reviews and related
compensation and benefit increases and the provision of new individual
compensation and benefits for promoted or newly hired officers and
employees on terms consistent with past practice).
(g) Litigation and Liabilities.
Except as disclosed in the Metrocall Filed Reports, as of the date
hereof, there are no: (1) civil, criminal or administrative actions,
suits, claims, hearings, investigations or proceedings pending or, to the
knowledge of the Metrocall Knowledgeable Executives, threatened against
Metrocall or any of its Subsidiaries; or (2) obligations or liabilities,
whether or not accrued, contingent or otherwise, and whether or not
required to be disclosed except as would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on
Metrocall or prevent, materially delay or materially impair its ability to
consummate the transactions contemplated by this Agreement.
(h) Employee Benefits.
(i) Neither Metrocall nor any of its respective ERISA Affiliates
maintains, is a party to, participates in, or has any liability or
contingent liability with respect to, any Compensation and Benefit
Plan. A true and correct copy of each Compensation and Benefit Plan
of Metrocall which has been reduced to writing and, to the extent
applicable, copies of the most recent annual report, actuarial
report, accountant's opinion of the plan's financial statements,
summary plan description and Internal Revenue Service determination
letter with respect to any Compensation and Benefit Plans of
Metrocall and any trust agreements or insurance contracts forming a
part of such Compensation and Benefit Plans has been made available
by Metrocall to Weblink prior to the date of this Agreement. In the
case of any Compensation and Benefit Plan of Metrocall which is not
in written form, Metrocall has supplied to Weblink an accurate
description of such Compensation and Benefit Plan as in effect on the
date of this Agreement.
(ii) All Compensation and Benefit Plans of Metrocall, other than
a multiemployer plan (as defined in Section 3(37) of ERISA), are in
substantial compliance with all requirements of applicable law,
including the Code and ERISA and no event has occurred which will or
could cause any such Compensation and Benefit Plan to fail to comply
with such requirements and no notice has been issued by any
governmental authority questioning or challenging
27
such compliance. There have been no acts or omissions by Metrocall or
any of its respective ERISA Affiliates, which have given rise to or
may give rise to material fines, penalties, taxes or related charges
under Section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code
for which Metrocall or any of its respective ERISA Affiliates may be
liable. Each of the Compensation and Benefit Plans of Metrocall that
is an "employee pension benefit plan" within the meaning of Section
3(2) of ERISA, other than a multiemployer plan (each a "Pension
Plan"), and that is intended to be qualified under Section 401(a) of
the Code has received a favorable determination letter from the IRS
which covers all changes in law for which the remedial amendment
period (within the meaning of Section 401(b) of the Code and
applicable regulations) has expired and neither Metrocall, nor any of
its respective ERISA Affiliates is aware of any circumstances
reasonably likely to result in revocation of any such favorable
determination letter. There is no pending or, to the knowledge of the
Metrocall Knowledgeable Executives, threatened material litigation
relating to its Compensation and Benefit Plans. Neither Metrocall,
nor any of its respective ERISA Affiliates, has engaged in a
transaction with respect to any of the Compensation and Benefit Plans
of Metrocall that, assuming the taxable period of such transaction
expired as of the date of this Agreement, would subject it or any of
the ERISA Affiliates to a material tax or penalty imposed by either
Section 4975 of the Code or Section 502 of ERISA.
(iii) As of the date of this Agreement, no liability under Title
IV of ERISA (other than the payment of prospective premium amounts to
the Pension Benefit Guaranty Corporation in the normal course) has
been or is expected to be incurred by Metrocall or any of its
respective ERISA Affiliates with respect to any Compensation and
Benefit Plan of Metrocall. No notice of a "reportable event," within
the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for
any Pension Plans within the 12-month period ending on the date of
this Agreement or will be required to be filed in connection with the
transactions contemplated by this Agreement.
(iv) All contributions required to be made under the terms of
all of the Compensation and Benefit Plans of Metrocall as of the date
of this Agreement have been timely made or have been reflected on the
most recent consolidated balance sheet filed or incorporated by
reference in the Metrocall Reports prior to the date of this
Agreement. None of the Pension Plans has an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412
of the Code or Section 302 of ERISA. Neither Metrocall, nor any of
its respective ERISA Affiliates has provided, or is required to
provide, security to any Pension Plans pursuant to Section 401(a)(29)
of the Code or to the PBGC pursuant to Title IV or ERISA.
28
(v) Under each of the Pension Plans as of the last day of the
most recent plan year ended prior to the date of this Agreement, the
actuarially determined present value of all "benefit liabilities,"
within the meaning of Section 4001(a)(16) of ERISA (as determined on
the basis of the actuarial assumptions contained in such Pension
Plan's most recent actuarial valuation), did not exceed the then
current value of the assets of such Pension Plan, and there has been
no material change in the financial condition of such Pension Plan
since the last day of the most recent plan year.
(vi) Neither Metrocall, nor any of its respective ERISA
Affiliates, have any obligations for post-termination health and life
benefits under any of the Compensation and Benefit Plans of
Metrocall, except as set forth in the Metrocall Reports filed prior
to the date of this Agreement or as required by applicable law.
(vii) The consummation of the Merger (or the approval thereof by
the Metrocall stockholders) and the other transactions contemplated
by this Agreement, will not (except as may result from, or be
contemplated or authorized by, any order of the Metrocall Bankruptcy
Court or the Metrocall Prearranged Plan): (x) entitle any of
Metrocall employees or directors or any employees of any of its ERISA
Affiliates, as applicable, to severance pay, directly or indirectly,
upon termination of employment or otherwise; (y) accelerate the time
of payment or vesting or trigger any payment of compensation or
benefits under, or increase the amount payable or trigger any other
material obligation pursuant to, any of the Compensation and Benefit
Plans of Metrocall; or (z) result in any breach or violation of, or a
default under, any of the Compensation and Benefit Plans of
Metrocall.
(viii) None of the Compensation and Benefit Plans of Metrocall
is a multiemployer plan and neither Metrocall, nor any of its
respective ERISA Affiliates, have contributed or been obligated to
contribute to a multiemployer plan at any time.
(i) Compliance with Laws.
(i) Except as set forth in the Metrocall Filed Reports, the
businesses of each of Metrocall and its Subsidiaries have not since
January 1, 1998 been, and are not being, conducted in violation of
any Laws, except for violations or possible violations that are not,
individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on Metrocall or prevent, materially delay or
materially impair its ability to consummate the transactions
contemplated by this Agreement. Except as set forth in the Metrocall
Filed Reports, no investigation or review by any Governmental Entity
with respect to
29
Metrocall or any of its Subsidiaries is pending or, to the knowledge
of the Metrocall Knowledgeable Executives, threatened, nor has any
Governmental Entity indicated an intention to conduct the same,
except for those the outcome of which are not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on
Metrocall or prevent, materially delay or materially impair its
ability to consummate the transactions contemplated by this
Agreement. To the knowledge of the Metrocall Knowledgeable
Executives, no material change is required in Metrocall or any of its
Subsidiaries' processes, properties or procedures in connection with
any such Laws, and it has not received any notice or communication of
any material noncompliance with any such Laws that has not been cured
as of the date of this Agreement, except for such changes and
noncompliance that are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on Metrocall or
prevent, materially delay or materially impair its ability to
consummate the transactions contemplated by this Agreement.
(ii) Each of Weblink and its Subsidiaries has all Permits
(collectively, the "Metrocall Permits"), necessary to conduct its
business as presently conducted, except for those the absence of
which are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on Metrocall or prevent, materially
delay or materially impair its ability to consummate the transactions
contemplated by this Agreement.
(j) Takeover Statutes; Charter and Bylaw Provisions.
The Metrocall Board of Directors has taken all appropriate and necessary
actions to exempt the Merger, this Agreement and the other transactions
contemplated hereby from the restrictions of Section 203 of the DGCL. No
other Takeover Statute applies to the Merger, this Agreement, or any of
the other transactions contemplated. Metrocall and the Metrocall Board of
Directors have taken all appropriate and necessary actions to (i) render
the Metrocall Rights Agreement inapplicable to the Merger and the other
transactions contemplated by this Agreement, (ii) provide that (1)
Metrocall shall not be deemed an Acquiring Person (as defined in the
Metrocall Rights Agreement) as a result of this Agreement or the
transactions contemplated hereby and thereby, (2) no Distribution Date (as
defined in the Metrocall Rights Agreement) shall be deemed to have
occurred as a result of this Agreement or the transactions contemplated
hereby and (3) the rights issuable pursuant to the Metrocall Rights
Agreement will not separate from the shares of Metrocall Common Stock, as
a result of the approval, execution or delivery of this Agreement or the
consummation of the transactions contemplated hereby, and (iii) render any
anti-takeover or other provision contained in the certificate of
incorporation or by-laws of Metrocall inapplicable to the Merger, this
Agreement and the other transactions contemplated hereby.
30
"Metrocall Rights Agreement" means the Rights Agreement, dated as of
February 25, 2000, between Metrocall and the First Chicago Trust Agreement of
New York, as Rights Agent.
(k) Taxes.
Metrocall and each of its Subsidiaries have prepared in good faith
and duly and timely filed (taking into account any extension of time
within which to file) all Tax Returns required to be filed by any of them
and all such filed Tax Returns are complete and accurate in all material
respects. Metrocall and each of its Subsidiaries (i) have paid all Taxes
and estimated Taxes (including all amounts shown to be due on all filed
Tax Returns) that they are required to pay or, where payment is not yet
due, has established (or has had established on its behalf and for its
sole benefit and recourse) in accordance with GAAP an adequate accrual for
all Taxes through the end of the last period for which Metrocall and its
Subsidiaries ordinarily record items on their respective books, and (ii)
have withheld or collected all federal, state and local income Taxes,
FICA, FUTA and other Taxes, including, without limitation, similar foreign
Taxes, required to be withheld from amounts owing to any employee,
creditor, or third party, and to the extent required, have paid such
amounts to the proper governmental authority. As of the date of this
Agreement, there are no audits, examinations, investigations or other
proceedings pending or threatened in writing, with respect to Taxes or Tax
matters of Metrocall or any of its Subsidiaries. There are no claims or
outstanding proposed or assessed deficiencies concerning Metrocall's or
any of its Subsidiaries' Tax liability which have not been settled or
otherwise resolved. Neither Metrocall nor any of its Subsidiaries has any
liability with respect to income, franchise or similar Taxes in excess of
the amounts accrued with respect to such Taxes that are reflected in the
financial statements included in the Metrocall Reports. Neither Metrocall
nor any of its Subsidiaries has executed any waiver of any statute of
limitations on, or extended the period for the assessment or collection
of, any Tax. There are no Tax liens (other than liens for current Taxes
not yet due and payable) upon Metrocall's assets or the assets of any of
its Subsidiaries. Except as set forth on Section 5.2(k) of the Metrocall
Disclosure Letter, there is no "Section 382 limitation," as defined in
Section 382(b) of the Code, currently applicable to Metrocall's or its
Subsidiaries' net operating loss, investment credit, or other tax
attribute carryforwards. Neither Metrocall nor any of its Subsidiaries:
(A) is a party to any Tax sharing agreement; or (B) is liable for the Tax
obligations of any person other than Metrocall or its Subsidiaries. None
of Metrocall or any of its Subsidiaries will be required to include any
item of income in any taxable period (or portion thereof) ending after the
Closing Date as a result of a change in a method of accounting for a
taxable period ending on or prior to the Closing Date. Metrocall has
delivered or made available to Weblink true and complete copies of all
federal income Tax Returns of Metrocall and each of its Subsidiaries for
all periods ending on or after January 1, 1997.
(l) Labor Matters.
31
Neither Metrocall nor any of its Subsidiaries is the subject of any
material proceeding asserting that Metrocall or any of its Subsidiaries
has committed an unfair labor practice or is seeking to compel Metrocall
to bargain with any labor union or labor organization, nor is there
pending or, to the knowledge of the Metrocall Knowledgeable Executives,
threatened, nor has there been for the past five years, any labor strike,
dispute, walkout, work stoppage, slow-down or lockout involving Metrocall
or any of its Subsidiaries, except in each case as is not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect on
Metrocall. None of the employees of Metrocall or any of its Subsidiaries
is subject to a collective bargaining agreement, no collective bargaining
agreement is being negotiated, and no attempt is being made as of the date
hereof or during the past three (3) years has been made to organize any of
its employees to form or enter into any labor union or similar
organization.
(m) Environmental Matters.
Except as disclosed in the Metrocall Filed Reports and except for
such matters that, individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect on Metrocall: (i) to the
knowledge of the Metrocall Knowledgeable Executives, each of Metrocall and
its Subsidiaries has complied with, and is in compliance with, all
applicable Environmental Laws and each Permit required under Environmental
Laws; (ii) to the knowledge of the Metrocall Knowledgeable Executives, the
properties currently owned or operated by Metrocall or any of its
Subsidiaries (including soils, groundwater, surface water, buildings, or
other structures) do not contain any Hazardous Substances; (iii) to the
knowledge of the Metrocall Knowledgeable Executives, the properties
formerly owned or operated by Metrocall or any of its Subsidiaries did not
contain any Hazardous Substances during the period of ownership or
operation by it or any of its Subsidiaries; (iv) neither Metrocall nor any
of its Subsidiaries is subject to liability for any Hazardous Substance
disposal or contamination on any third party property; (v) neither
Metrocall nor any of its Subsidiaries has been associated with any release
or threat of release of any Hazardous Substance which could result in
liability to Metrocall or to any of its Subsidiaries; (vi) neither
Metrocall nor any Subsidiary has received any notice, demand, letter,
claim, or request for information alleging that Metrocall or any of its
Subsidiaries may be in violation of or liable under any Environmental Law;
(vii) neither Metrocall nor any of its Subsidiaries is subject to any
orders, decrees, injunctions, or other arrangements with any Governmental
Entity or is subject to any indemnity or other agreement with any third
party relating to liability under any Environmental Law or relating to
Hazardous Substances; and (viii) to the knowledge of the Metrocall
Knowledgeable Executives, there are no circumstances or conditions
involving Metrocall or any of its Subsidiaries that could reasonably be
expected to result in any claims, liability, investigations, costs, or
restrictions on the ownership, use, or transfer of any of Metrocall's
properties pursuant to any Environmental Law.
32
Except as set forth in this Section 5.2(m) and Section 5.2(d) above, no
representations or warranties are being made hereunder by Metrocall or any of
its Subsidiaries with respect to environmental matters.
(n) Brokers and Finders.
Neither Metrocall nor any of its officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage
fees, commissions or finders' fees in connection with the Merger or the
other transactions contemplated in this Agreement, except that Metrocall
has employed the persons identified on Schedule 5.2(n) as its financial
advisors, the arrangements with which have been disclosed to Metrocall
prior to the date of this Agreement. The fees (excluding expenses) payable
to all brokers and finders employed by Weblink shall not exceed the amount
set forth on Schedule 5.2(n).
(o) FCC Licenses.
Each of Metrocall and its respective Subsidiaries is the authorized
and legal holder of, or otherwise has all rights to, all Permits issued
under or pursuant to the Communications Act, the FCC Regulations, and
State Laws which are necessary for the operation of their respective
businesses as presently operated, except as would not, individually or in
aggregate, have a Materially Adverse Effect on Metrocall. All such Permits
and licenses are validly issued and in full force and effect, except as
would not, individually or in the aggregate, have a Material Adverse
Effect on Metrocall. Each of Metrocall and its respective Subsidiaries is
in compliance in all respects with the terms and conditions of each such
Permit and with all applicable Governmental Regulations, except where the
failure to be in compliance would not have a Material Adverse Effect on
Metrocall. There is not pending, and to the knowledge of the Metrocall
Knowledgeable Executives, any threatened, action by or before the FCC or
any governmental or regulatory authority to revoke, suspend, cancel,
rescind, or modify in any material respect any of Metrocall's Permits
rights under the Communications Act, the FCC Regulations or State Laws.
Metrocall has made all regulatory filings required, and paid all fees and
assessments imposed, by any Governmental Entity, and all such filings and
the calculation of such fees, are accurate in all material respects,
except where the failure to make such filing or pay such fees or
assessments would not have a Material Adverse Effect on Metrocall.
(p) Contracts.
The Metrocall Disclosure Letter sets forth a correct and complete
list of each material distribution or alliance Contract to which it or any
of its Significant Investees is a party. The Metrocall Disclosure Letter
accurately summarizes the remaining duration of each such Contract and any
renewal rights possessed by Metrocall or any of its
33
Significant Investees thereunder. As of the date hereof, Metrocall is not
in breach of any of its material obligations under the Contracts listed in
Section 5.2(p) of the Metrocall Disclosure Letter (other than any such
breach by virtue of or as a result of Metrocall's insolvency).
ARTICLE VI
COVENANTS
6.1 Interim Operations.
(a) Weblink covenants and agrees as to itself and its Subsidiaries
that, from and after the date of this Agreement and prior to the Effective
Time (unless Metrocall shall otherwise approve in writing, and except as
otherwise expressly contemplated by this Agreement, disclosed in the
Weblink Disclosure Letter, or required by applicable Law (including any
orders of the Weblink Bankruptcy Court)):
(i) It shall conduct its business and the business of its
Subsidiaries only in the ordinary course of business and, to the
extent consistent therewith, it and its Subsidiaries shall use all
commercially reasonable efforts to preserve their respective business
organizations and assets intact and maintain their respective
existing relations and goodwill with customers, suppliers,
regulators, distributors, creditors, lessors, employees and business
associates;
(ii) It shall not: (A) amend its certificate of incorporation or
bylaws; (B) split, combine, subdivide or reclassify its outstanding
shares of capital stock; (C) declare, set aside or pay any dividend
payable in cash, stock or property with respect to any capital stock;
or (D) repurchase, redeem or otherwise acquire, except in connection
with existing commitments under Weblink Stock Plans but subject to
Weblink's obligations under subparagraph (iii) below, or permit any
of its Subsidiaries to purchase or otherwise acquire, any shares of
its capital stock or any securities convertible into, or exchangeable
or exercisable for, any shares of its capital stock;
(iii) Neither it nor any of its ERISA Affiliates shall: (A)
accelerate, amend or change the period of exercisability of or
terminate, establish, adopt, enter into, make any new grants or
awards of stock-based compensation or other benefits under any
Compensation and Benefit Plans; (B) amend or otherwise modify any
Compensation and Benefit Plan; or (C) increase the salary, wage,
bonus or other compensation of any directors, officers or key
employees, in each case except: (w) changes in compensation and
benefits in an amount in the aggregate not exceeding $300,000; (x)
for grants or awards to directors, officers and employees of it or
its Subsidiaries under existing Compensation and Benefit
34
Plans in such amounts and on such terms as are consistent with past
practice; (y) in the ordinary course of its business (which may
include normal periodic performance reviews and related compensation
and benefit increases and the provision of individual Weblink
Compensation and Benefit Plans consistent with past practice for
promoted or newly hired officers and employees on terms consistent
with past practice); or (z) for actions necessary to satisfy existing
contractual obligations under Compensation and Benefit Plans existing
as of the date of this Agreement;
(iv) Neither it nor any of its Subsidiaries shall incur, repay
or retire prior to maturity or refinance any indebtedness for
borrowed money or guarantee any such indebtedness or issue, sell,
repurchase or redeem prior to maturity any debt securities or
warrants or rights to acquire any debt securities or guarantee any
debt securities of others, except (A) for any refinancing of such
indebtedness or debt securities on terms no less favorable in the
aggregate to Weblink or (B) the DIP Financing (defined below), in
each case which would not prevent, materially delay or materially
impair Weblink's ability to consummate the transactions contemplated
by this Agreement or the Weblink Prearranged Plan;
(v) Neither it nor any of its Subsidiaries shall make any
capital expenditures in an aggregate amount in excess of $54,000,000
after January 1, 2001;
(vi) Neither it nor any of its Subsidiaries shall issue,
deliver, sell, pledge or encumber shares of any class of its capital
stock or any securities convertible or exchangeable into, or any
rights, warrants or options to acquire, or any bonds, debentures,
notes, or other debt obligations having the right to vote or that are
convertible or exercisable for, any such shares, except Weblink may
issue Weblink Common Stock in exchange for indebtedness or debt
securities pursuant to clause (iv) above;
(vii) Except as permitted under Section 6.2 or in connection
with the exercise of its termination right under Section 8.4(b),
neither it nor any of its Subsidiaries shall authorize, propose or
announce an intention to authorize or propose, or enter into an
agreement with respect to, (A) any merger, consolidation or business
combination (other than the Merger), or (B) any purchase, sale,
lease, license or other acquisition or disposition of any business or
of a material amount of assets or securities, except for in the case
of clause (B) (x) transactions entered into in the ordinary course of
its business, or (y) any acquisition of assets or any investment
having a cash purchase price of $5,000,000 or less in any single
instance and $10,000,000 or less in the aggregate, or (z) any sale of
assets having a sale price, individually or in aggregate, in excess
of $5,000,000, in each case
35
where such acquisition, investment or sale would not prevent,
materially delay or materially impair Weblink's ability to consummate
the transactions contemplated by this Agreement or the Weblink
Prearranged Plan;
(viii) Weblink shall not make any material change in its
accounting policies or procedures, other than any such change that is
required by GAAP;
(ix) Weblink shall not release, assign, settle or compromise any
material claims or litigation in excess of $500,000 (unless the full
amount of any such settlement or compromise shall be payable under
Weblink's insurance policies) or make any material Tax election or
settle or compromise any material federal, state, local or foreign
Tax liability; and
(x) Neither it nor any of its Subsidiaries shall authorize or
enter into any agreement to do any of the foregoing.
(b) Metrocall covenants and agrees as to itself and its Subsidiaries
that, from and after the date of this Agreement and prior to the Effective
Time (unless Weblink shall otherwise approve in writing and except as
otherwise expressly contemplated by this Agreement, disclosed in the
Metrocall Disclosure Letter, or required by applicable Law (including any
orders of the Metrocall Bankruptcy Court):
(i) Its business and the business of its Subsidiaries shall be
conducted only in the ordinary course of business and, to the extent
consistent therewith, it and its Subsidiaries shall use all
commercially reasonable efforts to preserve their respective business
organizations and assets intact and maintain their respective
existing relations and goodwill with customers, suppliers,
regulators, distributors, creditors, lessors, employees and business
associates;
(ii) It shall not: (A) amend its certificate of incorporation or
bylaws; (B) split, combine, subdivide or reclassify its outstanding
shares of capital stock; (C) declare, set aside or pay any dividend
payable in cash, stock or property with respect to any capital stock,
except for a dividend that would be received by holders of Weblink
Common Stock on an equivalent post-Merger basis per share of
Metrocall Common Stock after the Effective Time; or (D) repurchase,
redeem or otherwise acquire, except in connection with existing
commitments under Metrocall Stock Plans but subject to Metrocall's
obligations under subparagraph (iii) below, or permit any of its
Subsidiaries to purchase or otherwise acquire, any shares of its
capital stock or any securities convertible into, or exchangeable or
exercisable for, any shares of its capital stock;
(iii) Neither it nor any of its ERISA Affiliates shall: (A)
accelerate, amend or change the period of exercisability of or
terminate, establish,
36
adopt, enter into, make any new grants or awards of stock-based
compensation or other benefits under any Compensation and Benefit
Plans; (B) amend or otherwise modify any Compensation and Benefit
Plan; or (C) increase the salary, wage, bonus or other compensation
of any directors, officers or key employees, in each case except: (w)
changes in compensation and benefits in an amount in the aggregate
not exceeding $300,000; (x) for grants or awards to directors,
officers and employees of it or its Subsidiaries under existing
Compensation and Benefit Plans in such amounts and on such terms as
are consistent with past practice; (y) in the ordinary course of its
business (which may include normal periodic performance reviews and
related compensation and benefit increases and the provision of
individual Metrocall Compensation and Benefit Plans consistent with
past practice for promoted or newly hired officers and employees on
terms consistent with past practice); or (z) for actions necessary to
satisfy existing contractual obligations under its Compensation and
Benefit Plans existing as of the date of this Agreement;
(iv) Neither it nor any of its Subsidiaries shall incur, repay
or retire prior to maturity or refinance any indebtedness for
borrowed money or guarantee any such indebtedness or issue, sell,
repurchase or redeem prior to maturity any debt securities or
warrants or rights to acquire any debt securities or guarantee any
debt securities of others, except for any refinancing of such
indebtedness or debt securities on terms no less favorable in the
aggregate to Metrocall and which would not prevent, materially delay
or materially impair Metrocall's ability to consummate the
transactions contemplated by this Agreement or the Metrocall
Prearranged Plan;
(v) Neither it nor any of its Subsidiaries shall make any
capital expenditures in an aggregate amount in excess of $92,000,000
after January 1, 2001;
(vi) Neither it nor any of its Subsidiaries shall issue,
deliver, sell, pledge or encumber shares of any class of its capital
stock or any securities convertible or exchangeable into, or any
rights, warrants or options to acquire, or any bonds, debentures,
notes, or other debt obligations having the right to vote or that are
convertible or exercisable for, any such shares, except Metrocall may
issue Metrocall Common Stock issued in exchange for indebtedness or
debt securities pursuant to clause (iv) above;
(vii) Except as permitted under Section 6.2or in connection with
the exercise of its termination right under Section 8.5(b), neither
it nor any of its Subsidiaries shall authorize, propose or announce
an intention to authorize or propose, or enter into an agreement with
respect to, (A) any merger, consolidation or business combination
(other than the Merger), or (B) any purchase, sale, lease,
37
license or other acquisition or disposition of any business or of a
material amount of assets or securities, except for in the case of
clause (B) (x) transactions entered into in the ordinary course of
its business, or (y) any acquisition of assets or any investment
having a cash purchase price of $5,000,000 or less in any single
instance and $10,000,000 or less in the aggregate, or (z) any sale of
assets having a sale price, individually or in aggregate, in excess
of $5,000,000 in each case where such acquisition, investment or sale
would not prevent, materially delay or materially impair Metrocall's
ability to consummate the transactions contemplated by this Agreement
or the Metrocall Prearranged Plan;
(viii) Metrocall shall not make any material change in its
accounting policies or procedures, other than any such change that is
required by GAAP;
(ix) Metrocall shall not release, assign, settle or compromise
any material claims or litigation in excess of $500,000 (unless the
full amount of any such settlement or compromise shall be payable
under Metrocall's insurance policies) or make any material Tax
election or settle or compromise any material federal, state, local
or foreign Tax liability; and
(x) Neither it nor any of its Subsidiaries shall authorize or
enter into any agreement to do any of the foregoing.
As used herein, "ordinary course of business" (1) prior to the
commencement of the Bankruptcy Cases, means the ordinary course of business of
a Person consistent with such Person's past custom and practice (including with
respect to quantity and frequency); provided that (A) actions taken by a Person
contemplated by this Agreement, including the commencement of the Bankruptcy
Cases, and (B) applicable only to the term as used in Sections 6.1(a)(i) and
6.1(b)(i) of this Agreement, any and all actions taken while such Person
operated as a distressed company prior to and following the commencement of its
Bankruptcy Cases shall not be deemed for any purposes of this Agreement to
constitute actions not in the ordinary course of business and (2) following the
commencement of the Bankruptcy Cases, shall have the same meaning as in the
Bankruptcy Code.
6.2 Acquisition Proposals.
(a) Each of Weblink and Metrocall agree that neither it nor any of
its Subsidiaries nor any of the officers and directors of it or its
Subsidiaries shall, and that each shall direct and use its reasonable best
efforts to cause its and its Subsidiaries' Representatives not to,
directly or indirectly, initiate, solicit, encourage or otherwise
facilitate any inquiries or the making of any proposal or offer with
respect to any Acquisition Proposal. For purposes of this Agreement,
"Acquisition Proposal" means any bona fide written offer or proposal for,
or any written indication of interest in, any
38
(1) direct or indirect acquisition or purchase of any business or assets
of Metrocall or Weblink, as the case may be, or any of their respective
Subsidiaries that, individually or in the aggregate, constitutes 15% or
more of the net revenues, net income or assets of such party and its
Subsidiaries, taken as a whole, (2) direct or indirect acquisition or
purchase of 15% or more of any class of equity securities of Metrocall or
Weblink or any of their respective Subsidiaries whose business constitutes
15% or more of the net revenues, net income or assets of such party and
its Subsidiaries, taken as a whole, (3) tender offer or exchange offer
that, if consummated, would result in any Person beneficially owning 15%
or more of any class of securities of Metrocall or Weblink or any of their
respective Subsidiaries whose business constitutes 15% or more the net
revenues, net income or assets of such party and its Subsidiaries, taken
as a whole, or (4) merger, consolidation, business combination, joint
venture, partnership, recapitalization, liquidation, dissolution or
similar transaction involving Metrocall or Weblink or any of their
respective Subsidiaries whose business constitutes 15% or more of the net
revenue, net income or assets of such party and its Subsidiaries, taken as
a whole, other than the transactions contemplated by this Agreement. Each
of Weblink and Metrocall further agree that neither it nor any of its
Subsidiaries nor any of the officers and directors of it or its
Subsidiaries shall, and that it shall direct and use its reasonable best
efforts to cause its Representatives not to, directly or indirectly, have
any discussion with, or provide any confidential information or data to,
any Person relating to, or in contemplation of, an Acquisition Proposal or
engage in any negotiations concerning an Acquisition Proposal, or
otherwise knowingly facilitate any effort or attempt to make or implement
an Acquisition Proposal (including by waiving any "standstill" or similar
provision of any agreement with any Person); provided, however, that
nothing contained in this Agreement shall prevent Weblink, Metrocall or
their respective Boards of Directors from:
(i) complying with Rule 14e-2 promulgated under the Exchange Act
with regard to an Acquisition Proposal;
(ii) prior to the commencement of the Bankruptcy Cases, engaging
in any discussions or negotiations with or providing any information
to, any Person in response to an unsolicited bona fide written
Acquisition Proposal by any such Person if, and only to the extent
that, with respect to the actions referred to in clause (ii):
(1) its Board of Directors concludes in good faith (after
consultation with its outside legal counsel and its financial
advisors) that such Acquisition Proposal is reasonably capable
of being completed, taking into account all legal, financial,
regulatory and other aspects of the proposal (including any
breakup fee, expense reimbursement provisions and conditions to
consummation) and the Person making the proposal, and would, if
consummated, result in a transaction more favorable to its
stakeholders from a financial point of view than the transaction
39
contemplated by this Agreement (any such Acquisition Proposal
being referred to herein as a "Superior Proposal");
(2) its Board of Directors determines in good faith after
consultation with outside legal counsel that failure to take
such action by the Board of Directors would be inconsistent with
its fiduciary duty to its stakeholders under applicable Law; and
(3) prior to providing any information or data to any
Person in connection with a Superior Proposal by any such
Person, its Board of Directors shall receive from such Person an
executed confidentiality agreement on terms substantially
similar to those contained in the Confidentiality Agreement (as
defined in Section 6.12); provided that such confidentiality
agreement shall contain terms that allow Weblink or Metrocall,
as the case may be, to comply with its obligations under this
Section 6.2; or
(iii) following the commencement of the Bankruptcy Cases, taking
any of the actions set forth in Section 6.2(a)(ii) without regard to
whether or not a Person has made a Superior Proposal (provided that
the person providing information pursuant to this subsection shall
comply with any additional requirements, if any imposed by the
Bankruptcy Code or any order of the Bankruptcy Court).
"Representatives" means, as to a Person, any employees, agents, investment
bankers, attorneys, accountants, consultants, advisers, and other
representatives retained by it or any of its Subsidiaries.
Notwithstanding any of the foregoing, in the period between the execution
of this Agreement and the commencement of the respective Bankruptcy Cases, each
of Metrocall and Weblink shall be permitted to engage in any discussions or
negotiations with or provide any information to a creditor of such Person for
the purpose of seeking the approval or consent of such creditor of or to such
Person's Prearranged Plan if, and only to the extent that prior to providing
any information or data to such creditor, its Board of Directors shall receive
from such creditor an executed confidentiality agreement on terms substantially
similar to those contained in the Confidentiality Agreement (as defined in
Section 6.12).
(b) Each of Weblink and Metrocall agrees that it will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal. Each of Weblink and Metrocall agrees that it will
take the necessary steps to promptly inform each of its Representatives of
the obligations undertaken in Section 6.2. Each of Weblink and Metrocall
agrees that it will notify the other, respectively within 24 hours, if any
40
bona fide inquiries, proposals or offers are received by, any such
information is requested from, or any such discussions or negotiations are
sought to be initiated or continued with, any Persons reasonably believed
to be making or interested in making a bona fide Acquisition Proposal
indicating, in connection with such notice, the name of such Person making
such inquiry, proposal, offer or request and the substance of any such
inquiries, proposals or offers. Such party thereafter shall keep inform
the other within 24 hours, of a material change in the status and material
terms of any such inquiries, proposals or offers.
6.3 Information Supplied.
Weblink and Metrocall each agrees, as to itself and its Subsidiaries, that
the information supplied or to be supplied by it or its Subsidiaries for
inclusion or incorporation by reference in: the disclosure statements to be
filed in connection with the Metrocall Prearranged Plan or the Weblink
Prearranged Plan will, at the time such disclosure statement is submitted for
approval to the relevant bankruptcy court, contain adequate information as
defined in Section 1125 of the Bankruptcy Code.
6.4 Other Actions; Notification.
(a) Weblink and Metrocall shall cooperate with each other and each
shall use (and shall cause their respective Subsidiaries to use) all
commercially reasonable efforts: (i) to take or cause to be taken all
actions, and do or cause to be done all things, necessary, proper or
advisable on its part under this Agreement and applicable Laws to
consummate and make effective the Merger and the other transactions
contemplated by this Agreement (including, without limitation, filing and
seeking the confirmation of the Metrocall Prearranged Plan and the Weblink
Prearranged Plan) as soon as practicable including, without limitation:
(A) preparing and filing as promptly as practicable all documentation to
effect all necessary applications, notices, petitions, filings and other
documents (including concurrently commencing the Weblink Bankruptcy Cases
and the Metrocall Bankruptcy Cases on or before May 15, 2001); and (B)
instituting court actions or other proceedings necessary to obtain the
approvals required to consummate the Merger or the other transactions
contemplated by this Agreement (including entry of the Weblink Alliance
Assumption Orders) or defending or otherwise opposing all court actions or
other proceedings instituted by a Governmental Entity or other Person
under the Governmental Regulations for purposes of preventing the
consummation of the Merger and the other transactions contemplated by this
Agreement; and (ii) to obtain as promptly as practicable all consents,
registrations, approvals, permits and authorizations necessary or
advisable to be obtained from any third party and/or any Governmental
Entity in order to consummate the Merger or any of the other transactions
contemplated by this Agreement; provided that nothing in this Section 6.4
shall require either Metrocall or Weblink to agree to any divestitures or
hold separate or similar arrangements if such divestitures or arrangements
would reasonably
41
be expected to have a Material Adverse Effect on Metrocall or Weblink.
Neither Metrocall nor Weblink will agree to any divestitures or hold
separate or similar arrangements without the prior written approval of the
other party. Subject to applicable laws relating to the exchange of
information, Metrocall and Weblink shall to the extent practicable have
the right to review in advance, and each will consult the other party on,
all the information relating to Metrocall or Weblink, as the case may be,
and any of their respective Subsidiaries, that appears in any filing made
with, or written materials submitted to, any third party and/or any
Governmental Entity in connection with the Merger and the other
transactions contemplated by this Agreement. In exercising the foregoing
right, each of Weblink and Metrocall shall act reasonably and as promptly
as practicable.
(b) Without limiting the foregoing, Metrocall and Weblink shall (1)
shall use their reasonable best efforts to make all filings required under
the HSR Act and the Communications Act as promptly as possible, but in no
event later than ten (10) Business Days after the execution of this
Agreement, (2) use their reasonable best efforts to seek early termination
of the waiting period under the HSR Act, (3) respond promptly to any
additional requests for information under the HSR Act and the
Communications Act and (4) take all other action necessary to expedite
compliance with the HSR Act and the Communications Act in order to
consummate the transactions contemplated hereby.
(c) Weblink and Metrocall each shall, upon request by the other
party, furnish the other party with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such other matters
as may be reasonably necessary or advisable in connection with any
statement, filing, notice or application made by, or on behalf of,
Metrocall, Weblink or any of their respective Subsidiaries to any third
party and/or any Governmental Entity in connection with the Merger and the
transactions contemplated by this Agreement.
(d) Weblink and Metrocall each shall keep the other party apprised of
the status of matters relating to completion of the transactions
contemplated by this Agreement, including promptly furnishing the other
party with copies of notices or other communications received by Metrocall
or Weblink, as the case may be, or any of its Subsidiaries, from any third
party and/or any Governmental Entity with respect to the Merger and the
other transactions contemplated by this Agreement. Each of Weblink and
Metrocall shall give prompt notice to the other party of any event or
occurrence that if pending on the date of this Agreement, would have been
required to be disclosed by Weblink pursuant to Sections 5.1(f), (g), (h),
(i), (k), (l), (m), (n) or (p) or by Metrocall pursuant to Sections
5.2(f), (g), (h), (i), (k), (l), (m), (n) or (p).
(e) Each of Weblink and Metrocall agrees that if a bona fide
Acquisition Proposal is made to the other party to this Agreement, then
upon the request of the party not receiving the Acquisition Proposal, the
party receiving the Acquisition
42
Proposal will cooperate with the other party to this Agreement to make
such filings and take such other actions as may be permitted or required
under the FCC's Policy Statement in Tender Offers and Proxy Contests, in
order to allow the parties to this Agreement to take all steps as are
necessary to consummate the transactions contemplated hereby pending FCC
approval of the transaction.
6.5 Access; Consultation.
Upon reasonable notice, and except as may be prohibited by applicable Law,
Weblink and Metrocall each shall (and shall cause its Subsidiaries to) afford
the other and its respective Representatives, reasonable access, during normal
business hours throughout the period prior to the Effective Time, to its
properties, books, contracts and records and, during such period, each shall
(and shall cause its Subsidiaries to) furnish promptly to the other party all
information concerning its business, properties and personnel as may reasonably
be requested; provided that no investigation pursuant to this section shall
affect or be deemed to modify any representation or warranty made by Weblink or
Metrocall under this Agreement; and provided, further, that the foregoing shall
not require Weblink or Metrocall to permit any inspection, or to disclose any
information, that in the reasonable judgment of Weblink or Metrocall, as the
case may be, would result in the disclosure of any trade secrets of it or third
parties, or violate any of its obligations with respect to confidentiality if
Weblink or Metrocall, as the case may be, shall have used all commercially
reasonable efforts to obtain the consent of such third party to such inspection
or disclosure. All requests for information made pursuant to this section shall
be directed to an executive officer of Weblink or Metrocall, as the case may
be, or such Person as may be designated by any such executive officer, as the
case may be. Any information exchanged or provided pursuant to this Agreement
shall be subject to the terms of the Confidentiality Agreement.
6.6 Underwriters.
Each of Weblink and Metrocall shall deliver to the other a letter
identifying all Persons whom it believes to be, as of the Effective Time,
affiliates or "underwriters" of Weblink or Metrocall, respectively, for
purposes of Section 1145 under the Bankruptcy Code ("Section 1145
Underwriters"). Weblink shall use all commercially reasonable efforts to cause
each Person who is identified as a Section 1145 Underwriter in the letter
referred to above to deliver to Metrocall 30 days prior to closing a written
agreement, in a form reasonably agreed to by counsel to Weblink and Metrocall
(the "Weblink 1145 Underwriter Agreement"). Metrocall shall use all
commercially reasonable efforts to cause each Person who is identified as a
Section 1145 Underwriter in the letter referred to above to deliver to Weblink
30 days prior to closing a written agreement, in a form reasonably agreed to by
counsel to Weblink and Metrocall (the "Metrocall 1145 Underwriter Agreement").
6.7 Listing Application.
43
The Surviving Corporation shall use all commercially reasonable efforts to
file an application for listing with respect to the shares of New Common Stock
to be issued pursuant to the Merger, the Metrocall Prearranged Plan and the
Weblink Prearranged Plan with the Nasdaq Stock Market ("NASDAQ") on or prior to
the Closing Date.
6.8 Publicity.
Weblink and Metrocall will each issue an initial press release with
respect to the Merger that is in a form reasonably acceptable to the other.
Thereafter Weblink and Metrocall shall consult with each other prior to issuing
any press releases or otherwise making public announcements with respect to the
Merger, the Metrocall Prearranged Plan, the Weblink Prearranged Plan, the
Amended Alliance Agreement (as defined in Section 6.13) and the other
transactions contemplated by this Agreement and prior to making any filings
with any third party and/or any Governmental Entity (including any securities
exchange) with respect thereto, except as may be required by Law or by
obligations pursuant to any listing agreement with, or rules of, any securities
exchange.
6.9 Benefits.
(a) Stock Options. At the Effective Time, each outstanding option to
purchase Weblink Common Stock and each outstanding option to purchase
Metrocall Common Stock under the Weblink Stock Plans or Metrocall Stock
Plans, as the case may be, shall, subject to the order of the Bankruptcy
Court, be cancelled and of no further force or effect. The Surviving
Corporation will adopt a new stock option and/or restricted stock plan
covering the Surviving Corporation and its Subsidiaries providing for
incentive stock option grants and/or restricted stock awards equal in the
aggregate to 10 percent of the New Common Stock on a fully diluted basis
issued as a result of the Weblink Prearranged Plan and the Metrocall
Prearranged Plan.
(b) Other Benefits.
(i) The benefit plans of the Surviving Corporation immediately
following confirmation of the Weblink Prearranged Plan and the
Metrocall Prearranged Plan shall be the benefit plans provided for in
such plans of reorganization.
(ii) The Surviving Corporation will treat Persons formerly
employed by Weblink and/or Metrocall similarly for benefit
eligibility and service crediting purposes under generally applicable
Compensation or Benefit Plans so that similarly situated persons will
be treated similarly regardless of whether they were employed before
the Merger by Weblink or Metrocall. Notwithstanding the preceding
sentence, nothing in this Agreement is intended to restrict either
Weblink's or Metrocall's (or the Surviving Corporation's) ability to
terminate the employment of any employee.
44
6.10 Expenses.
Except as otherwise provided in this Agreement, whether or not the Merger
is consummated, all costs and expenses incurred in connection with this
Agreement, the Merger, the Metrocall Prearranged Plan, the Metrocall Bankruptcy
Cases, the Weblink Prearranged Plan, the Weblink Bankruptcy Cases, and the
other transactions contemplated by this Agreement shall be paid by the party
incurring such cost and expense; provided that costs and expenses incurred in
connection with the filing fee under the HSR Act, any other filings fees under
any Governmental Regulations (other than fees and charges (such as Chapter 11
filing fees and U.S. Trustee's fees) triggered under the Bankruptcy Code and
related statutes), and any filings fees in connection with obtaining approvals
under the Communications Act, FCC Regulations and State Laws shall be shared
equally by Metrocall and Weblink.
6.11 Indemnification; Directors' and Officers' Insurance.
(a) The Surviving Corporation will indemnify and hold harmless each
present and former director and officer of Weblink (solely when acting in
such capacity) (the "Indemnified Parties"), against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims,
damages or liabilities (collectively, "Costs") incurred in connection with
any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of or pertaining to
matters existing or occurring at, or prior to, the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the
fullest extent that Weblink would have been permitted under Delaware law
and its certificate of incorporation or bylaws in effect on the date of
this Agreement to indemnify such Person (and the Surviving Corporation
shall also advance expenses as incurred to the fullest extent permitted
under applicable law, provided the Person to whom expenses are advanced
provides an undertaking to repay such advances if it is ultimately
determined that such Person is not entitled to indemnification).
(b) Any Indemnified Party wishing to claim indemnification under
Section 6.11(a) shall promptly notify the Surviving Corporation, upon
learning of any such claim, action, suit, proceeding or investigation, but
the failure to so notify shall not relieve the Surviving Corporation of
any liability it may have to such Indemnified Party if such failure does
not materially prejudice the ability of the Surviving Corporation to
defend such claims. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time), (i) Metrocall (prior to the Effective Time) and the Surviving
Corporation (thereafter) shall have the right to assume the defense
thereof and such party shall not be liable to such Indemnified Parties for
any legal expenses of other counsel or any other expenses subsequently
incurred by such Indemnified Parties in connection with the defense
thereof, except that if such party elects not to assume such defense or
counsel for the Indemnified Parties advises that there are actual or
potential conflicts of interest between Metrocall or the Surviving
45
Corporation, as the case may be, and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and Metrocall
or the Surviving Corporation, as the case may be, shall pay all reasonable
fees and expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received; provided, however, that such party shall
be obligated pursuant to this Section 6.11(b) to pay for only one firm of
counsel for all Indemnified Parties in any jurisdiction (unless there is
such an actual conflict of interest), (ii) the Indemnified Parties will
cooperate in the defense of any such matter and (iii) Metrocall (prior to
the Effective Time) and the Surviving Corporation (thereafter) shall not
be liable for any settlement effected without its prior written consent.
(c) The Surviving Corporation shall maintain a policy of officers'
and directors' liability insurance for acts and omissions occurring prior
to the Effective Time ("D&O Insurance") with coverage in amount and scope
at least as favorable as Weblink's existing directors' and officers'
liability insurance coverage for a period of six (6) years after the
Effective Time, or such longer period as the Surviving Corporation shall
be able to obtain on commercially reasonable terms; provided that if the
existing D&O Insurance expires, is terminated or canceled, or if the
annual premium therefor is increased to an amount in excess of 200% of the
last annual premium paid prior to the date of this Agreement (the "Current
Premium"), in each case during such six-year (or longer) period, the
Surviving Corporation will use all commercially reasonable efforts to
obtain D&O Insurance in an amount and scope as great as can be obtained
for the remainder of such period for a premium not in excess (on an
annualized basis) of 200% of the Current Premium. The provisions of this
Section 6.11(c) shall be deemed to have been satisfied if prepaid policies
shall have been obtained by Weblink prior to the Closing, which policies
provide such directors and officers with coverage for an aggregate period
of six years (or such longer period as the Surviving Corporation shall be
able to obtain on commercially reasonable terms) with respect to claims
arising from facts or events that occurred on, or prior to, the Effective
Time, including, without limitation, with respect to the transactions
contemplated by this Agreement. If such prepaid policies shall have been
obtained by Weblink prior to the Closing, then the Surviving Corporation
shall maintain such policies in full force and effect and shall continue
to honor Weblink's obligations thereunder.
(d) If the Surviving Corporation or any of its successors or assigns:
(i) shall consolidate with, or merge into, any other corporation or entity
and shall not be the continuing or surviving corporation or entity of such
consolidation or merger; or (ii) shall transfer all or substantially all
of its properties and assets to any individual, corporation or other
entity, then and in each such case, proper provisions shall be made so
that the successors and assigns of the Surviving Corporation shall assume
all of the obligations set forth in this section. At the Effective Time,
the Surviving Corporation shall assume and be bound by all of Weblink's
indemnity obligations with respect to
46
officers, directors and employees of corporations it previously acquired
that are identified in the corresponding section of the Weblink Disclosure
Letter.
(e) The provisions of this section are intended to be for the benefit
of, and shall be enforceable by, each of the Indemnified Parties, their
heirs and their representatives.
6.12 Confidentiality.
Weblink and Metrocall each acknowledges and confirms that it has entered
into a Confidentiality Agreement, dated as of February 20, 2001 (the
"Confidentiality Agreement"), and that the Confidentiality Agreement shall
remain in full force and effect in accordance with its terms.
6.13 Strategic Alliance Agreement.
Metrocall and Weblink are parties to that certain Amended and Restated
Strategic Alliance Agreement, dated as of May 18, 2000, as amended by that
certain Amendment No. 1, dated January 15, 2001 (collectively, the "Alliance
Agreement"). Concurrently herewith, the parties have executed and delivered to
each other Amendment No. 2 to the Alliance Agreement (together with the
Alliance Agreement, the "Amended Alliance Agreement"). Metrocall and Weblink
shall each perform their respective obligations under the Amended Alliance
Agreement.
6.14 Bankruptcy Provisions for Weblink.
(a) Except as provided in Section 6.14(b), the Weblink Bankruptcy
Cases shall be filed in the Delaware Court on or before the Weblink Target
Filing Date.
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. ss.
101 et seq., as now in effect or hereafter amended, to the extent applicable to
either both of the Metrocall Bankruptcy Cases and the Weblink Bankruptcy Cases.
"Weblink Bankruptcy Cases" means the bankruptcy cases filed or stipulated
to by Weblink and, to the extent Weblink deems necessary in its sole judgment,
its Subsidiaries under Chapter 11 of the Bankruptcy Code pursuant to the terms
hereof.
"Weblink Target Filing Date" means May 15, 2001.
(b) If a Weblink Involuntary Insolvency Event occurs prior to a
voluntary commencement of the Weblink Bankruptcy Cases pursuant to Section
6.14(a), then:
(i) To the extent that the Weblink Involuntary Insolvency Event
shall have occurred in the Delaware Court, then Weblink shall
stipulate to
47
such relief under Chapter 11 of the Bankruptcy Code no later than the
Weblink Target Filing Date or such other date as Metrocall and
Weblink shall agree; or
"Weblink Involuntary Insolvency Event" means the filing of an involuntary
Chapter 11 bankruptcy petition against Weblink and/or any of its Subsidiaries
by any party, or the appointment under other applicable state or federal law of
a liquidator or a trustee for Weblink and/or any of its Subsidiaries.
(ii) To the extent that the Weblink Involuntary Insolvency Event
shall have occurred in a court other than the Delaware Court, then
Weblink shall consult with Metrocall and, if requested by Metrocall,
(x) use all commercially reasonable efforts to obtain from the
appropriate court an order which (1) dismisses such Weblink
Involuntary Insolvency Event or (2) transfers venue of the Weblink
Bankruptcy Cases to the Delaware Court, and (y) proceed with the
bankruptcy filing contemplated by Section 6.14(a). Notwithstanding
the foregoing, if Metrocall does not request that Weblink seek the
dismissal or transfer of the Weblink Involuntary Insolvency Event or
if Weblink is unable to obtain such dismissal or transfer of the
Weblink Involuntary Insolvency Event, this Agreement shall remain in
full force and effect in the jurisdiction where the Weblink
Involuntary Insolvency Event was initially filed (subject in any case
to termination pursuant to any other applicable provision).
(c) As soon as practicable after entering into this Agreement,
Weblink and Metrocall shall jointly prepare (1) the motions referred to in
Section 6.14(e), (2) the Weblink Prearranged Plan and (3) Weblink
Disclosure Statement, each in form and substance reasonably satisfactory
to Weblink and Metrocall. Weblink and Metrocall shall cooperate to ensure
that the Weblink Prearranged Plan and Weblink Disclosure Statement comply
with the disclosure requirements of the Bankruptcy Code and applicable
law. The Weblink Prearranged Plan may not be amended, modified or added to
in any material respect without the written consent of Weblink and
Metrocall.
"Weblink Disclosure Statement" means the disclosure statement that relates
to the Weblink Prearranged Plan, as approved by the Weblink Bankruptcy Court
pursuant to 11 U.S.C. ss. 1125.
(d) Notwithstanding any other provision hereof to the contrary,
neither (i) the commencement of the Weblink Bankruptcy Cases, the
operation of Weblink as a debtor-in-possession in accordance with the
Bankruptcy Code or the pendency of the Weblink Bankruptcy Cases, nor (ii)
the occurrence of a Weblink Involuntary Insolvency Event shall be
considered in and of itself a Material Adverse Effect for purposes of this
Agreement.
48
(e) On the day of the first hearing before the Weblink Bankruptcy
Court after the commencement of the Weblink Bankruptcy Cases under Section
6.14(a) of this Agreement, or within one business day of the date that an
order for relief is consented to under Section 6.14(b) of this Agreement
or an order for relief is entered, as applicable, Weblink shall file with
the Weblink Bankruptcy Court (i) a motion (the "Weblink Initial Merger
Motion") seeking an order containing the same terms as those set forth in
(x) Section 6.2 hereof (concerning Acquisition Proposals) and (y) Section
8.6(c) (concerning the Metrocall Termination Fee), and (ii) a motion to
approve Weblink's assumption of the Amended Alliance Agreement, which
shall seek an order that will be conditioned upon the entry of the
Metrocall Alliance Assumption Order (as defined in Section 6.15(e)) (the
"Weblink Alliance Assumption Motion"), (iii) a motion to approve Weblink's
assumption of the Volume Purchase Agreement dated as of September 29, 2000
between Glenayre Electronics, Inc. and Weblink (the "Weblink Glenayre
Assumption Motion"), and (iv) the Weblink Prearranged Plan and the Weblink
Disclosure Statement together with a motion to approve the Weblink
Disclosure Statement, each in form and substance acceptable to Metrocall.
Weblink shall use its reasonable best efforts to obtain (A) a Final Order
approving the Weblink Glenayre Assumption Motion (the "Weblink Glenayre
Assumption Order") and a Final Order approving the Weblink Alliance
Assumption Motion (the "Weblink Alliance Assumption Order", and together
with the Metrocall Alliance Assumption Order (as defined in Section
6.15(e)), the "Alliance Assumption Orders"), each within thirty (30) days
of the commencement of the Weblink Bankruptcy Cases, which orders shall be
in form and substance reasonably acceptable to Metrocall, and (B) a Final
Order (as defined in Section 7.1(c)) approving the Weblink Initial Merger
Motion (the "Weblink Initial Merger Order") and a Final Order approving
the Weblink Disclosure Statement, each within sixty (60) days of the
commencement of the Weblink Bankruptcy Cases, which orders shall be in
form and substance reasonably acceptable to Metrocall.
(f) Weblink shall promptly provide Metrocall with drafts of all
documents, motions, orders, notices, reports, filings or pleadings that
Weblink proposes to file with the Weblink Bankruptcy Court and will
further provide Metrocall with a reasonable opportunity prior to the
filing thereof to review such filings to the extent reasonably
practicable. Weblink shall consult and cooperate with Metrocall with
respect to all such filings.
"Weblink Bankruptcy Court" means the court in which the Weblink Bankruptcy
Cases may be filed or otherwise administered, including any court to which the
Weblink Bankruptcy Cases may be transferred at any time under applicable law.
(g) Weblink and Metrocall shall use their reasonable best efforts to
cause the transactions contemplated by this Agreement and the Weblink
Prearranged Plan to be consummated in accordance with the terms hereof and
thereof, and without limiting the generality of the foregoing shall use
their reasonable best efforts to obtain all
49
necessary approvals, waivers, consents, permits, licenses, registrations
and other authorizations required in connection with this Agreement and
the Weblink Prearranged Plan and the transactions contemplated hereby and
thereby, including without limitation, entry of the Weblink Confirmation
Order.
"Weblink Confirmation Order" means an order of the Weblink Bankruptcy
Court confirming the Weblink Prearranged Plan in form and substance reasonably
acceptable to Weblink and Metrocall, which has not been amended, modified and
added to without the express consent of Weblink and Metrocall and as to which
order as of the Effective Time there is no stay or injunction.
(h) Weblink shall cause its Subsidiaries to take all actions and to
execute all agreements and documents which are necessary or useful in the
preparation of and commencement of the Weblink Bankruptcy Cases, the
preparation, filing and prosecution of the Weblink Prearranged Plan and
the entry of the Weblink Confirmation Order.
(i) During the Weblink Bankruptcy Cases, Metrocall shall: (i) support
assumption of this Agreement by Weblink, as a debtor-in-possession,
pursuant to 11 X.X.X.xx. 365; (ii) enter into a new agreement identical to
the terms of this Agreement with Weblink, as a debtor-in-possession, after
commencement of the Weblink Bankruptcy Cases, in the event Weblink and
Metrocall agree (upon the advice of counsel) or the Weblink Bankruptcy
Court determines that applicable law prohibits assumption of this
Agreement by Weblink pursuant to 11 X.X.X.xx. 365(c)(2); (iii) support
confirmation of the Weblink Prearranged Plan and all actions and pleadings
reasonably undertaken by Weblink in the Weblink Bankruptcy Cases to
achieve confirmation thereof and to maintain Weblink's exclusive right to
file a plan of reorganization pursuant to 11 X.X.X.xx. 1121; and (iv)
oppose any effort by any party to (1) dismiss the Weblink Bankruptcy Cases
or convert the Weblink Bankruptcy Cases to a case under Chapter 7 of the
Bankruptcy Code, (2) terminate Weblink's plan exclusivity pursuant to 11
U.S.C. ss. 1121, or (3) defeat confirmation of the Weblink Prearranged
Plan.
(j) Weblink shall not move to approve a severance and retention plan
(other than as attached as Schedule 6.14(j)(ii)) without the prior
approval of Metrocall, which shall not be unreasonably withheld,
conditioned or delayed.
6.15 Bankruptcy Provisions for Metrocall.
(a) Except as provided in Section 6.15(b), the Metrocall Bankruptcy
Cases shall be filed in the Delaware Court on or before the Metrocall
Target Filing Date.
"Metrocall Bankruptcy Cases" means the bankruptcy cases filed or
stipulated to by Metrocall and, to the extent Metrocall deems necessary in its
sole judgment, its Subsidiaries under Chapter 11 of the Bankruptcy Code
pursuant to the terms hereof.
50
"Metrocall Target Filing Date" means May 15, 2001.
(b) If a Metrocall Involuntary Insolvency Event occurs prior to a
voluntary commencement of the Metrocall Bankruptcy Cases pursuant to
Section 6.15(a), then:
(i) To the extent that the Metrocall Involuntary Insolvency
Event shall have occurred in the Delaware Court, then Metrocall shall
stipulate to such relief under Chapter 11 of the Bankruptcy Code no
later than the Metrocall Target Filing Date or such other date as
Weblink and Metrocall shall agree; or
"Metrocall Involuntary Insolvency Event" means the filing of an
involuntary Chapter 11 bankruptcy petition against Metrocall and/or any of its
Subsidiaries by any party, or the appointment under other applicable state or
federal law of a liquidator or a trustee for Metrocall and/or any of its
Subsidiaries.
(ii) To the extent that the Metrocall Involuntary Insolvency
Event shall have occurred in a court other than the Delaware Court,
then Metrocall shall consult with Weblink and, if requested by
Weblink, (x) use all commercially reasonable efforts to obtain from
an appropriate court an order which (1) dismisses such Metrocall
Involuntary Insolvency Event or (2) transfers venue of the Metrocall
Bankruptcy Cases to the Delaware Court, and (y) proceed with the
bankruptcy filing contemplated by Section 6.15(a). Notwithstanding
the foregoing, if Weblink does not request that Metrocall seek the
dismissal or transfer of the Metrocall Involuntary Insolvency Event
or if Metrocall is unable to obtain such dismissal or transfer of the
Metrocall Involuntary Insolvency Event, this Agreement shall remain
in full force and effect in the jurisdiction where the Metrocall
Involuntary Insolvency Event was initially filed (subject in any case
to termination pursuant to any other applicable provision).
(c) As soon as practicable after entering into this Agreement,
Metrocall and Weblink shall jointly prepare (1) the motions referred to in
Section 6.15(e), (2) the Metrocall Prearranged Plan and (3) Metrocall
Disclosure Statement, each in form and substance reasonably satisfactory
to Metrocall and Weblink. Metrocall and Weblink shall cooperate to ensure
that the Metrocall Prearranged Plan and Metrocall Disclosure Statement
comply with the disclosure requirements of the Bankruptcy Code and
applicable law. The Metrocall Prearranged Plan may not be amended,
modified or added to in any material respect without the written consent
of Metrocall and Weblink.
"Metrocall Disclosure Statement" means the disclosure statement that
relates to the Metrocall Prearranged Plan, as approved by the Metrocall
Bankruptcy Court pursuant to 11 U.S.C. ss. 1125.
51
(d) Notwithstanding any other provision hereof to the contrary,
neither (i) the filing of the Metrocall Bankruptcy Cases, the operation of
Metrocall as a debtor-in-possession in accordance with the Bankruptcy Code
or the pendency of the Metrocall Bankruptcy Cases, nor (ii) the occurrence
of a Metrocall Involuntary Insolvency Event shall be considered in and of
itself a Material Adverse Effect for purposes of this Agreement.
(e) On the first day of the first hearing before the Metrocall
Bankruptcy Court after the commencement of the Metrocall Bankruptcy Cases
under Section 6.15(a) of this Agreement, or within one business day of the
date that an order for relief is consented to under Section 6.15(b) of
this Agreement or an order for relief is entered, as applicable, Metrocall
shall file with the Metrocall Bankruptcy Court (i) a motion (the
"Metrocall Initial Merger Motion") seeking an order containing the same
terms as those set forth in (x) Section 6.2 (concerning Acquisition
Proposals) and (y) Section 8.6(b) (concerning the Weblink Termination
Fee), (ii) a motion to approve Metrocall assumption of the Amended
Alliance Agreement (the "Metrocall Alliance Assumption Motion") and (iii)
the Metrocall Prearranged Plan and the Metrocall Disclosure Statement
together with a motion to approve the Metrocall Disclosure Statement, each
in form and substance acceptable to Weblink. Metrocall shall use its
reasonable best efforts to obtain (A) a Final Order approving the
Metrocall Alliance Assumption Motion, which shall seek an order that will
be conditioned upon the entry of the Weblink Alliance Assumption Order and
the Weblink Glenayre Assumption Order (each as defined in Section 6.14(e))
(the "Metrocall Alliance Assumption Order"), within thirty (30) days of
the commencement of the Metrocall Bankruptcy Cases, which order shall be
in form and substance reasonably acceptable to Weblink, and (B) a Final
Order approving the Metrocall Initial Merger Motion (the "Metrocall
Initial Merger Order") and a Final Order approving the Metrocall
Disclosure Statement, each within sixty (60) days of the commencement of
the Metrocall Bankruptcy Cases, which orders shall be in form and
substance reasonably acceptable to Weblink
(f) Metrocall shall promptly provide Weblink with drafts of all
documents, motions, orders, notices, reports, filings or pleadings that
Metrocall proposes to file with the Metrocall Bankruptcy Court and will
further provide Weblink with a reasonable opportunity prior to the filing
thereof to review such filings to the extent reasonably practicable.
Metrocall shall consult and cooperate with Weblink with respect to all
such filings.
"Metrocall Bankruptcy Court" means the court in which the Metrocall
Bankruptcy Cases may be filed or otherwise administered, including any court to
which the Metrocall Bankruptcy Cases may be transferred at any time under
applicable law.
(g) Metrocall and Weblink shall use their reasonable best efforts to
cause the transactions contemplated by this Agreement and the Metrocall
Prearranged
52
Plan to be consummated in accordance with the terms hereof and thereof,
and without limiting the generality of the foregoing shall use their
reasonable best efforts to obtain all necessary approvals, waivers,
consents, permits, licenses, registrations and other authorizations
required in connection with this Agreement and the Metrocall Prearranged
Plan and the transactions contemplated hereby and thereby, including
without limitation, entry of the Metrocall Confirmation Order.
"Metrocall Confirmation Order" means an order of the Metrocall Bankruptcy
Court confirming the Metrocall Prearranged Plan in form and substance
reasonably acceptable to Metrocall and Weblink, which has not been amended,
modified and added to without the express consent of Metrocall and Weblink and
as to which order as of the Effective Time there is no stay or injunction.
(h) Metrocall shall cause its Subsidiaries to take all actions and to
execute all agreements and documents which are necessary or useful in the
preparation of and commencement of the Metrocall Bankruptcy Cases, the
preparation, filing and prosecution of the Metrocall Prearranged Plan and
the entry of the Metrocall Confirmation Order.
(i) During the Metrocall Bankruptcy Cases, Weblink shall: (i) support
assumption of this Agreement by Metrocall, as a debtor-in-possession,
pursuant to 11 X.X.X.xx. 365; (ii) enter into a new agreement identical to
the terms of this Agreement with Metrocall, as a debtor-in-possession,
after commencement of the Metrocall Bankruptcy Cases, in the event
Metrocall and Weblink agree (upon the advice of counsel) or the Metrocall
Bankruptcy Court determines that applicable law prohibits assumption of
this Agreement by Metrocall pursuant to 11 X.X.X.xx. 365(c)(2); (iii)
support confirmation of the Metrocall Prearranged Plan and all actions and
pleadings reasonably undertaken by Metrocall in the Metrocall Bankruptcy
Cases to achieve confirmation thereof, and maintain Metrocall's exclusive
right to file a plan of reorganization pursuant to 11 X.X.X.xx. 1121; and
(iv) oppose any effort by any party to (1) dismiss the Metrocall
Bankruptcy Cases or convert the Metrocall Bankruptcy Cases to a case under
Chapter 7 of the Bankruptcy Code, (2) terminate Metrocall's plan
exclusivity pursuant to 11 U.S.C. ss. 1121, or (3) defeat confirmation of
the Metrocall Prearranged Plan.
(j) Metrocall shall not move to approve a severance and retention
plan (other than as attached as Schedule 6.15(j)(ii)) without the prior
approval of Weblink, which consent shall not be unreasonably withheld,
conditioned or delayed.
6.16 Other Bankruptcy Matters.
(a) Each of Metrocall and Weblink shall use its best reasonable
efforts to seek procedural consolidation in the Delaware Court of its
Bankruptcy Cases with any proceedings under the Bankruptcy Code involving
any of its Subsidiaries.
53
(b) Each of Metrocall and Weblink hereby confirms that it is critical
to the process of strategically combining Metrocall and Weblink to proceed
by selecting the other party to enter into this Agreement in order to
present the Bankruptcy Court with arrangements for obtaining the most
favorable terms for its stockholders and creditors, and that without the
other party's having committed substantial time and effort to such
process, the estates of each party would have to employ a less orderly
disposition process and thereby both incur higher costs and risk
attracting lower prices. Accordingly, the contributions of the each party
to the process have indisputably provided very substantial benefit to the
other party's estates. Each party acknowledges that the other party would
not have invested the effort in negotiating and documenting the
transaction provided for herein and incurring duties to pay its outside
advisors if such party were not entitled to the Termination Fee plus
reasonable fees and disbursements of its counsel incurred as a result of
the parties attempt to complete the Merger, if a party were not able to
consummate the Merger because of a Superior Proposal.
(c) Weblink agrees that, to the extent necessary to obtain
confirmation of the Weblink Prearranged Plan, Weblink will use its
reasonable best efforts to obtain such confirmation under the provisions
of 11 U.S.C. ss. 1129(b). Metrocall agrees that, to the extent necessary
to obtain confirmation of the Metrocall Prearranged Plan, Metrocall will
use its reasonable best efforts to obtain such confirmation under the
provisions of 11 U.S.C. ss. 1129(b).
6.17 Senior Credit Facility.
Weblink and Metrocall shall use all commercially reasonable efforts to
secure, through the amendment or restatement of their respective current credit
facilities as a consolidated facility, through a new credit facility, through
the operation of the Weblink Prearranged Plan, through the operation of the
Metrocall Prearranged Plan or any combination of the foregoing, senior secured
debt financing in an amount not to exceed $303 million plus a revolver of no
less than $35 million on terms reasonably acceptable to the parties to this
Agreement. Weblink shall solicit the consent of the holders of Weblink's senior
credit facilities (the "Weblink Secured Creditors") to the Weblink Prearranged
Plan. Metrocall shall solicit the consent of the holders of Metrocall's senior
credit facilities (the "Metrocall Secured Creditors") to the Metrocall
Prearranged Plan.
6.18 Rights Agreements.
At or prior to the Effective Time, the Metrocall Board of Directors shall
take all action required by Section 5.2(j) of this Agreement.
6.19 SEC Filings.
Weblink and Metrocall shall each file all necessary current reports on
their respective bankruptcies on Form 8-K pursuant to Item 3 of Form 8-K.
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6.20 Employment Agreements.
Each party will use its respective reasonable best efforts to obtain
amendments to the employment agreements of the executives listed on Schedule
3.2 consistent with the provisions of that Schedule. The Surviving Corporation
will provide the benefits to certain employees as provided in Schedule 6.20.
ARTICLE VII
CONDITIONS
7.1 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger is subject to
the satisfaction or waiver, if applicable, at or prior to the Effective Time of
each of the following conditions:
(a) Governmental Regulations.
The waiting period applicable to the consummation of the Merger under
the HSR Act shall have expired or been terminated, and all other consents,
permits, licenses, and approvals for the Merger and the other transactions
contemplated by this Agreement required by the Governmental Regulations
(including without limitation the FCC Regulations), as well as all other
material Weblink Required Consents and Metrocall Required Consents, shall
have been obtained and shall have become Final Orders.
"Final Order" means an action taken or order issued by the applicable
Governmental Entity as to which (i) no request for stay by such Governmental
Entity of the action or order is pending, no such stay is in effect, and, if
any deadline for filing any such request is designated by statute or
regulation, it is passed; (ii) no petition for rehearing or reconsideration of
the action or order is pending before the Governmental Entity and the time for
filing any such petition is passed; (iii) the Governmental Entity does not have
the action or order under reconsideration on its own motion and the time for
such reconsideration has passed; (iv) the action or order is not then under
active judicial review, there is no notice of appeal or other application for
judicial review pending, and the deadline for filing such notice of appeal or
other application for judicial review has passed; and (v) with respect to an
action taken or order issued by the Governmental Entity granting consent to the
Merger, such consent shall be without material adverse conditions, other than
conditions that have been agreed to by Weblink and Metrocall or that are
routine conditions with respect to transactions of this nature.
(b) Laws and Orders.
No Governmental Entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or
55
permanent) that is in effect and restrains, enjoins or otherwise prohibits
consummation of the Merger, the Weblink Prearranged Plan, the Metrocall
Prearranged Plan or the other transactions contemplated by this Agreement
(collectively, an "Order"), and no Governmental Entity shall have
instituted any proceeding or threatened to institute any proceeding
seeking any such Order.
(c) Confirmation of Weblink Prearranged Plan.
The Weblink Confirmation Order shall have become a Final Order and
all conditions to the Effective Time occurring under the Weblink
Prearranged Plan shall have been satisfied.
(d) Confirmation of Metrocall Prearranged Plan.
The Metrocall Confirmation Order shall have become a Final Order and
all conditions to the Effective Time occurring under the Metrocall
Prearranged Plan shall have been satisfied.
(e) Senior Credit Facility.
Metrocall and Weblink shall have obtained a senior credit facility
for the Surviving Corporation described in the first sentence of Section
6.17.
7.2 Conditions to Obligations of Metrocall.
The obligations of Metrocall to effect the Merger are also subject to the
satisfaction or waiver by Metrocall at or prior to the Effective Time of the
following conditions:
(a) Representations and Warranties.
The representations and warranties of Weblink set forth in this
Agreement and in any certificate provided hereunder (other than those
representations and warranties which would be breached as a result of the
filing or conduct of, or orders entered in, the Weblink Bankruptcy Cases
or the occurrence of a Weblink Involuntary Insolvency Event with respect
to Weblink): (i) to the extent qualified by materiality, shall be true and
correct; and (ii) to the extent not qualified by materiality, shall be
true and correct (except that this clause (ii) shall be deemed satisfied
so long as any failures of such representations and warranties to be true
and correct, taken together, would not reasonably be expected to have a
Material Adverse Effect on Weblink), in the case of each of clauses (i)
and (ii), as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date, and Metrocall
shall have received a certificate signed on behalf of Weblink by an
executive officer of Weblink to such effect.
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(b) Performance of Obligations of Weblink.
Weblink shall have performed in all material respects all of its
covenants, agreements and obligations set forth in this Agreement at or
prior to the Closing Date, and Metrocall shall have received a certificate
signed on behalf of Weblink by an executive officer of Weblink to such
effect.
(c) Consents Under Agreements.
Weblink shall have obtained the consent or approval of each Person
whose consent or approval shall be required in order to consummate the
transactions contemplated by this Agreement under any Contract to which
Weblink or any of its Subsidiaries is a party (other than consents or
waivers relating to the Weblink Bankruptcy Cases or the occurrence of a
Weblink Involuntary Insolvency Event), except those for which the failure
to obtain such consent or approval, individually or in the aggregate, is
not reasonably likely to have, a Material Adverse Effect on Weblink.
7.3 Conditions to Obligation of Weblink.
The obligation of Weblink to effect the Merger is also subject to the
satisfaction or waiver by Weblink at or prior to the Effective Time of the
following conditions:
(a) Representations and Warranties.
The representations and warranties of Metrocall set forth in this
Agreement and in any certificate provided hereunder (other than those
representations and warranties which would be breached as a result of the
filing or conduct of, or orders entered in, the Metrocall Bankruptcy Cases
or the occurrence of a Metrocall Involuntary Insolvency Event with respect
to Metrocall): (i) to the extent qualified by materiality, shall be true
and correct; and (ii) to the extent not qualified by materiality, shall be
true and correct (except that this clause (ii) shall be deemed satisfied
so long as any failures of such representations and warranties to be true
and correct, taken together, would not reasonably be expected to have a
Material Adverse Effect on Metrocall, in the case of each of clauses (i)
and (ii), as of the date of this Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date, and Weblink
shall have received a certificate signed on behalf of Metrocall by an
executive officer of Metrocall to such effect.
(b) Performance of Obligations of Metrocall.
Metrocall shall have performed in all material respects all of its
covenants, agreements and obligations set forth in this Agreement at or
prior to the Closing Date, and Weblink shall have received a certificate
signed on behalf of Metrocall by an executive officer of Metrocall to such
effect.
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(c) Consents Under Agreements.
Metrocall shall have obtained the consent or approval of each Person
whose consent or approval shall be required in order to consummate the
transactions contemplated by this Agreement under any Contract to which
Metrocall or any of its Subsidiaries is a party (other than consents or
waivers relating to the Metrocall Bankruptcy Cases or the occurrence of a
Metrocall Involuntary Insolvency Event), except those for which the
failure to obtain such consent or approval, individually or in the
aggregate, is not reasonably likely to have, a Material Adverse Effect on
Metrocall.
ARTICLE VIII
TERMINATION
8.1 Termination by Mutual Consent.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by mutual written consent of Weblink and
Metrocall.
8.2 Automatic Termination.
This Agreement shall terminate and the Merger shall be abandoned if either
(a) any other plan of reorganization filed by a Person other than Metrocall is
confirmed by the Metrocall Bankruptcy Court or (b) any other plan of
reorganization filed by a Person other than Weblink is confirmed by the Weblink
Bankruptcy Court.
8.3 Termination by Either Metrocall or Weblink.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time by action of the Board of Directors of either
Metrocall or Weblink if: (i) the Merger shall not have been consummated by
December 31, 2001 (the "Termination Date"); provided that the Termination Date
shall be automatically extended for 90 days if the sole reason that the Merger
has not been consummated by such date is that the condition set forth in
Section 7.1(a) has not been satisfied due to the failure to obtain the
necessary consents and approvals under applicable Governmental Regulations and
Metrocall or Weblink are still attempting to obtain such necessary consents and
approvals under applicable Governmental Regulations or are contesting the
refusal of the relevant Government Entities to give such consents or approvals
in court or through other applicable proceedings; or (ii) any Order permanently
restraining, enjoining or otherwise prohibiting consummation of the Merger
shall become final and non-appealable; provided, further, that the right to
terminate this Agreement pursuant to clause (i) above shall not be available to
any party that has breached in any material respect its obligations under this
Agreement in any manner that shall have proximately contributed to the failure
of the Merger to be consummated.
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8.4 Termination by Weblink.
Provided that Weblink is not in material breach of this Agreement, this
Agreement may be terminated and the Merger may be abandoned at any time prior
to the Effective Time, by action of the Board of Directors of Weblink if:
(a) except in circumstances where (x) a Metrocall Involuntary
Insolvency Event has been filed in the Delaware Court or (y) a Metrocall
Involuntary Insolvency Event has been filed in another venue and either
(1) Weblink has not requested that Metrocall seek the transfer of the
Metrocall Involuntary Insolvency Event to the Delaware Court or (2)
Metrocall is unable (despite its use of all commercially reasonable
efforts) to obtain an order dismissing such Metrocall Involuntary
Insolvency Event or transferring such cases to the Delaware Court,
Metrocall has failed to file the Metrocall Bankruptcy Cases in the
Delaware Court by the Metrocall Target Filing Date;
(b) if - prior to the approval of the Weblink Disclosure Statement by
the Weblink Bankruptcy Court - the Board of Directors of Weblink shall
have determined to accept a Superior Proposal; provided that prior to any
such termination, (i) Weblink has received a Superior Proposal, (ii) the
Board of Directors of Weblink determines, after receiving the advice of
outside legal counsel, in its good faith judgment that, in light of the
Superior Proposal, failure to terminate this Agreement would be
inconsistent with its fiduciary duty to the stakeholders of Weblink under
applicable law, (iii) five business days have elapsed following delivery
by Weblink to Metrocall of written notice advising Metrocall that the
Board of Directors of Weblink has resolved to terminate this Agreement,
specifying the material terms and conditions of the Superior Proposal and
identifying the Person making the Superior Proposal, (iv) Weblink has
given Metrocall the opportunity to propose revisions to the terms of this
Agreement in response to the Superior Proposal and negotiated in good
faith with Metrocall with respect to the proposed revisions, if any, and
(v) if such termination is proposed to occur following the commencement of
the Weblink Bankruptcy Case, the Bankruptcy Court shall have entered an
order directing Weblink to accept such Superior Proposal and (vi)
concurrently with such termination, Weblink shall pay the Termination Fee;
(c) there has been a material breach by Metrocall or any of its
Subsidiaries of any representation, warranty, covenant or agreement
contained in this Agreement which both: (i) would result in a failure of a
condition set forth in Section 7.2(a) or 7.2(b); and (ii) cannot be or is
not cured prior to the Termination Date other than a breach that results
solely from the filing or conduct of the Metrocall Bankruptcy Cases
consistent with the terms of this Agreement or solely from the occurrence
of a Metrocall Involuntary Insolvency Event;
(d) the Metrocall Prearranged Plan is withdrawn without the prior
written consent of Weblink, or Metrocall files any other plan of
reorganization or
59
amends, modifies or adds to any material provision of the Metrocall
Prearranged Plan, in each case without the prior written consent of
Weblink;
(e) Metrocall files a motion to sell or otherwise transfer all or a
substantial portion of its assets as part of a sale pursuant to Section
363 of the Bankruptcy Code without the prior written consent of Weblink;
(f) the Metrocall Initial Merger Order has not been entered within
sixty (60) days of the commencement of the Metrocall Bankruptcy Cases;
(g) the Metrocall Confirmation Order is not entered by December 15,
2001;
(h) the Metrocall Alliance Assumption Order has not been entered
within sixty (60) days of the commencement of the Metrocall Bankruptcy
Cases;
(i) the Metrocall Bankruptcy Court or any other court has entered an
order reversing, staying, vacating or amending, supplementing, or
otherwise modifying in a manner materially adverse to Weblink the terms of
the Metrocall Initial Merger Order or the Metrocall Alliance Assumption
Order;
(j) any of the Metrocall Bankruptcy Cases is dismissed or converted
to a case under Chapter 7 of the Bankruptcy Code;
(k) the Metrocall Bankruptcy Court enters an order granting relief
from the automatic stay imposed by Section 362 of the Bankruptcy Code to
any entity with respect to any of the material assets of Metrocall;
(l) the Metrocall Bankruptcy Court authorizes the appointment for
Metrocall or any of its debtor Subsidiaries of (1) a trustee or (2) an
examiner or other representative with expanded powers in the operation of
the business of any of the debtors; or
(m) there has been a material breach by Metrocall of the Amended
Alliance Agreement and such breach has not been cured within five business
days of written notice thereof by Weblink.
8.5 Termination by Metrocall.
Provided that Metrocall is not in material breach of this Agreement, this
Agreement may be terminated and the Merger may be abandoned at any time prior
to the Effective Time, by action of the Board of Directors of Metrocall if:
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(a) except in circumstances where (x) a Weblink Involuntary
Insolvency Event has been filed in the Delaware Court or (y) a Weblink
Involuntary Insolvency Event has been filed in another venue and either
(1) Metrocall has not requested that Weblink seek the transfer of the
Weblink Involuntary Insolvency Event to the Delaware Court or (2) Weblink
is unable (despite its use of all commercially reasonable efforts) to
obtain an order dismissing such Weblink Involuntary Insolvency Event or
transferring such cases to the Delaware Court, Weblink has failed to file
the Weblink Bankruptcy Cases in the Delaware Court by the Weblink Target
Filing Date;
(b) if - prior to approval of the Metrocall Disclosure Statement by
the Metrocall Bankruptcy Court - the Board of Directors of Metrocall shall
have determined to accept a Superior Proposal; provided that prior to any
such termination, (i) Metrocall has received a Superior Proposal, (ii) the
Board of Directors of Metrocall determines, after receiving the advice of
outside legal counsel, in its good faith judgment that, in light of the
Superior Proposal, failure to terminate this Agreement would be
inconsistent with its fiduciary duty to the stakeholders of Metrocall
under applicable law, (iii) five business days have elapsed following
delivery by Metrocall to Metrocall of written notice advising Metrocall
that the Board of Directors of Metrocall has resolved to terminate this
Agreement, specifying the material terms and conditions of the Superior
Proposal and identifying the Person making the Superior Proposal, (iv)
Metrocall has given Weblink the opportunity to propose revisions to the
terms of this Agreement in response to the Superior Proposal and
negotiated in good faith with Weblink with respect to the proposed
revisions, if any, and (v) if such termination is proposed to occur
following the commencement of the Metrocall Bankruptcy Case, the
Bankruptcy Court shall have entered an order directing Metrocall to accept
such Superior Proposal and (vi) concurrently with such termination,
Metrocall shall pay the Termination Fee;
(c) there has been a material breach by Weblink or any of its
Subsidiaries of any representation, warranty, covenant or agreement
contained in this Agreement which both: (i) would result in a failure of a
condition set forth in Section 7.3(a) or 7.3(b); and (ii) cannot be or is
not cured prior to the Termination Date other than a breach that results
solely from the filing or conduct of the Weblink Bankruptcy Cases
consistent with the terms of this Agreement or solely from the occurrence
of a Weblink Involuntary Insolvency Event;
(d) the Weblink Prearranged Plan is withdrawn without the prior
written consent of Metrocall, or Weblink files any other plan of
reorganization or amends, modifies or adds to any material provision of
the Weblink Prearranged Plan, in each case without the prior written
consent of Metrocall;
(e) Weblink files a motion to sell or otherwise transfer all or a
substantial portion of its assets as part of a sale pursuant to Section
363 of the Bankruptcy Code without the prior written consent of Metrocall;
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(f) the Weblink Initial Merger Order has not been entered within
sixty (60) days of the commencement of the Weblink Bankruptcy Cases;
(g) the Weblink Confirmation Order is not entered by December 15,
2001;
(h) either the Weblink Alliance Assumption Order or the Weblink
Glenayre Assumption Order has not been entered within sixty (60) days of
the commencement of the Weblink Bankruptcy Cases;
(i) the Weblink Bankruptcy Court or any other court has entered an
order reversing, staying, vacating or amending, supplementing or otherwise
modifying in a manner materially adverse to Metrocall terms of the Weblink
Initial Merger Order, the Weblink Alliance Assumption Order or the Weblink
Glenayre Assumption Order;
(j) any of the Weblink Bankruptcy Cases is dismissed or converted to
a case under Chapter 7 of the Bankruptcy Code; or
(k) the Weblink Bankruptcy Court enters an order granting relief from
the automatic stay imposed by Section 362 of the Bankruptcy Code to any
entity with respect to any of the material assets of Weblink; or
(l) the Weblink Bankruptcy Court authorizes the appointment for
Weblink or any of its debtor Subsidiaries of (1) a trustee or (2) an
examiner or other representative with expanded powers in the operation of
the business of any of the debtors;
(m) as of the commencement of the Weblink Bankruptcy Cases, Weblink
has not obtained an executed, written commitment for debtor-in-possession
financing (i) in the amount of not less than $50,000,000, which financing
permits Weblink to borrow amounts consistent with expected borrowing
required under the Weblink business plan (which business plan has been
provided to Metrocall), or (ii) in such lesser amount as Metrocall
determines in its reasonable discretion is sufficient, which financing
permits Weblink to borrow amounts consistent with expected borrowing
required under the revised Weblink business plan approved by Metrocall in
its reasonable discretion (the "DIP Financing"); provided, that in the
case of termination pursuant to this Section 8.5(m), Metrocall must
exercise its right of termination no later than five (5) Business Days
after the commencement of the Weblink Bankruptcy Cases; or
(n) there has been a material breach by Weblink of the Amended
Alliance Agreement and such breach has not been cured within five business
days of written notice thereof by Metrocall.
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8.6 Effect of Termination and Abandonment.
(a) In the event of termination of this Agreement and the abandonment
of the Merger pursuant to this Article VIII, this Agreement (other than as
set forth in Section 9.1) shall become void and of no effect with no
liability (other than as set forth in Section 8.6(b) or 8.6(c), or in the
proviso at the end of this sentence) on the part of any party to this
Agreement or of any of its directors, officers, employees, agents, legal
or financial advisors or other representatives; provided that no such
termination shall relieve any party to this Agreement from any liability
for damages resulting from any breach of this Agreement.
(b) Metrocall and its Subsidiaries (jointly and severally) shall pay
Weblink a termination fee equal to $12,000,000 plus actual documented
out-of-pocket expenses incurred by Weblink (collectively, the "Weblink
Termination Fee"), payable by wire transfer of same day funds in the event
that:
(i) an Acquisition Proposal shall have been made to Metrocall or
have been made directly to Metrocall's interest holders or creditors
generally or any Person shall have publicly announced an intention
(whether or not conditional) to make an Acquisition Proposal and
thereafter this Agreement is terminated by Metrocall pursuant to
Section 8.5(b);
(ii) this Agreement is terminated pursuant to Section 8.2 by
virtue of the confirmation of a plan of reorganization other than the
Metrocall Prearranged Plan in the Metrocall Bankruptcy Cases, except
in the case where such a plan is confirmed following (A) a material
breach by Weblink of this Agreement or (B) the failure of any of the
conditions in Sections 7.1(a) or (b) (provided that no Termination
Fee shall be payable under this clause (ii) if neither the Metrocall
Prearranged Plan nor the Weblink Prearranged Plan is confirmed); or
(iii) this Agreement is terminated by Weblink pursuant to
Section 8.4(e);
(iv) (1) this Agreement is terminated by Weblink pursuant to
Section 8.4(a), 8.4(c), 8.4(d), 8.4(f), 8.4(g), 8.4(h), 8.4(i) or
8.4(m), provided that, with respect to Section , it is terminated
solely with respect to a breach of Section 6.1, 6.2, or 6.15, and (2)
after the date of this Agreement and prior to the date that is one
year after the date of termination (x) the Metrocall Bankruptcy Court
enters an order either confirming a plan of reorganization for
Metrocall or authorizing the sale of all or any substantial portion
of Metrocall's and its Subsidiaries' assets pursuant to Section 363
of the Bankruptcy Code, or (y) the
63
non-debtor Subsidiaries of Metrocall (if any) sell, convey or
transfer (whether by asset sale, stock sale or merger) all or any
substantial portion of their assets.
A Weblink Termination Fee payable pursuant to Section 8.6(b)(ii) or
8.6(b)(iii) shall be paid no later than two days after the date of
termination; a Weblink Termination Fee payable pursuant to Section
8.6(b)(iv) shall be paid no later than two days after the second to occur
of (x) the termination pursuant to 8.6(b)(iv)(1) or (y) the event
described in 8.6(b)(iv)(2); and a Weblink Termination Fee payable pursuant
to Section 8.6(b)(i) shall be paid simultaneously with (and such payment
shall be a condition of) termination pursuant to Section 8.4(b). Metrocall
acknowledges that the agreements contained in this Section 8.6(b) are an
integral part of the transactions contemplated by this Agreement.
(c) Weblink and its Subsidiaries (jointly and severally) shall pay
Metrocall a termination fee equal to $12,000,000 plus actual documented
out-of-pocket expenses incurred by Metrocall (collectively, the "Metrocall
Termination Fee"), payable by wire transfer of same day funds in the event
that:
(i) an Acquisition Proposal shall have been made to Weblink or
have been made directly to Weblink's interest holders or creditors
generally or any Person shall have publicly announced an intention
(whether or not conditional) to make an Acquisition Proposal and
thereafter this Agreement is terminated by either Weblink or
Metrocall pursuant to Section 8.4(b);
(ii) this Agreement is terminated pursuant to Section 8.2 by
virtue of the confirmation of a plan of reorganization other than the
Weblink Prearranged Plan in the Weblink Bankruptcy Cases , except in
the case where such a plan is confirmed following (A) a material
breach by Metrocall of this Agreement or (B) the failure of any of
the conditions in Sections 7.1(a) or (b) (provided that no
Termination Fee shall be payable under this clause (ii) if neither
the Metrocall Prearranged Plan nor the Weblink Prearranged Plan is
confirmed); or
(iii) this Agreement is terminated by Metrocall pursuant to
Section 8.5(e); or
(iv) (1) this Agreement is terminated by Metrocall pursuant to
Section 8.5(a), 8.5(c), 8.5(d), 8.5(f), 8.5(g), 8.5(h), 8.5(i) or
8.5(n), provided that, with respect to Section 8.5(c), it is
terminated solely with respect to a breach of Section 6.1, 6.2 or
6.15, and (2) thereafter (x) the Weblink Bankruptcy Court enters an
order either confirming a plan of reorganization for Weblink or
authorizing the sale of all or any substantial portion of Weblink's
and its Subsidiaries' assets pursuant to Section 363 of the
Bankruptcy Code, or (y) the
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non-debtor subsidiaries of Weblink (if any) sell, convey or transfer
(whether by asset sale, stock sale or merger) all or any substantial
portion of their assets.
A Metrocall Termination Fee payable pursuant to Section 8.6(c)(ii) or
8.6(c)(iii) shall be paid no later than two days after the date of
termination; a Weblink Termination Fee payable pursuant to Section
8.6(c)(iv) shall be paid no later than two days after the second to occur
of (x) the termination pursuant to 8.6(c)(iv)(1) or (y) the event
described in 8.6(c)(iv)(2); and a Metrocall Termination Fee payable
pursuant to Section 8.6(c)(i) shall be paid simultaneously with (and such
payment shall be a condition of) termination pursuant to Section 8.6(c).
Weblink acknowledges that the agreements contained in this Section 8.6(c)
are an integral part of the transactions contemplated by this Agreement.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Survival.
Article II, Article III, Article IV and Article IX (other than Section 9.4
(Counterparts)), and the agreements of Weblink and Metrocall contained in
Sections 6.9 (Benefits), 6.10 (Expenses) and 6.11 (Indemnification; Directors'
and Officers' Insurance) shall survive the consummation of the Merger. This
Article IX (other than Section 9.2 (Modification or Amendment), Section 9.3
(Waiver of Conditions) and Section 9.13 (Assignment)) and the agreements of
Weblink and Metrocall contained in Section 6.10 (Expenses), Section 6.12
(Confidentiality) and Section 8.6 (Effect of Termination and Abandonment) shall
survive the termination of this Agreement. All other representations,
warranties, covenants and agreements in this Agreement shall not survive the
consummation of the Merger or the termination of this Agreement.
9.2 Modification or Amendment.
Subject to the provisions of the applicable law, at any time prior to the
Effective Time, the parties to this Agreement may modify or amend this
Agreement, by written agreement executed and delivered by duly authorized
officers of the respective parties. Notwithstanding any provision of this
Agreement to the contrary, if any provision of this Agreement is inconsistent
with the provisions of the Weblink Prearranged Plan and the Metrocall
Prearranged Plans, each as confirmed by orders of the Bankruptcy Court, the
provisions of such plans shall govern.
9.3 Waiver of Conditions.
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(a) Any provision of this Agreement may be waived prior to the
Effective Time if, and only if, such waiver is in writing and signed by an
authorized representative or the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power
or privilege under this Agreement shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
Except as otherwise provided in this Agreement, the rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by Law.
9.4 Counterparts.
This Agreement may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
9.5 Governing Law and Venue; Waiver of Jury Trial.
(a) This Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed, and governed by, and in accordance with,
the substantive laws of the State of Delaware, without regard to the
conflict of law principles thereof. The parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the
courts of the State of Delaware and of the United States of America
located in Wilmington, Delaware, including the Delaware Court, for any
litigation arising out of or relating to this Agreement, the Weblink
Prearranged Plan or the Metrocall Prearranged Plan and the transactions
contemplated by this Agreement (and agree not to commence any litigation
relating thereto except in such Delaware courts), waive any objection to
the laying of venue of any such litigation in such Delaware courts and
agree not to plead or claim in any such Delaware court that such
litigation brought therein has been brought in an inconvenient forum.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR
RELATING TO, THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO
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ENFORCE THE FOREGOING WAIVER; (ii) EACH SUCH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY; AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.5.
9.6 Notices.
Notices, requests, instructions or other documents to be given under this
Agreement shall be in writing and shall be deemed given: (i) when sent if sent
by facsimile, provided that receipt of the fax is promptly confirmed by
telephone; (ii) when delivered, if delivered personally to the intended
recipient; and (iii) one business day later, if sent by overnight delivery via
a national courier service, and in each case, addressed to a party at the
following address for such party:
If to Metrocall:
Metrocall, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xx. 00000
Attention: Xxxxxxx X. Xxxxxxx III
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
and if to Weblink:
Weblink Wireless, Inc.
0000 Xxx Xxxxxxx Xxxxx 000
Xxxxxx, Xx. 00000
Attention: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
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with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
Fax: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
9.7 Entire Agreement.
This Agreement (including any exhibits, schedules and annexes to this
Agreement), the Confidentiality Agreement, the Weblink Disclosure Letter, and
the Metrocall Disclosure Letter constitute the entire agreement, and supersede
all other prior agreements, understandings, representations and warranties,
both written and oral, among the parties with respect to the subject matter of
this Agreement. EACH PARTY TO THIS AGREEMENT AGREES THAT, EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER METROCALL
NOR WEBLINK MAKE ANY REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS
ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, NOTWITHSTANDING THE
DELIVERY OR DISCLOSURE TO THE OTHER PARTY OR THE OTHER PARTY'S REPRESENTATIVES
OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF
THE FOREGOING.
9.8 No Third Party Beneficiaries.
Except as provided in Section 6.11 (Indemnification; Directors' and
Officers' Insurance), this Agreement is not intended to confer upon any Person
other than the parties to this Agreement any rights or remedies under this
Agreement.
9.9 Obligations of Metrocall and of Weblink.
Whenever this Agreement requires a Subsidiary of Metrocall to take any
action, such requirement shall be deemed to include an undertaking on the part
of Metrocall to cause such Subsidiary to take such action. Whenever this
Agreement requires a Subsidiary of Weblink to take any action, such requirement
shall be deemed to include an undertaking on the part of
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Weblink to cause such Subsidiary to take such action and, after the Effective
Time, on the part of the Surviving Corporation to cause such Subsidiary to take
such action.
9.10 Severability.
The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity
or enforceability or the other provisions of this Agreement. If any provision
of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable: (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision; and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
9.11 Interpretation.
Where a reference in this Agreement is made to a section or exhibit, such
reference shall be to a section of, or exhibit or annex to this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." "Business day" means any day except Saturday,
Sunday or any other day on which commercial banking institutions in the City of
New York are authorized to close. Except as expressly provided otherwise, all
references to "days" shall refer to calendar days.
9.12 Captions.
The table of contents, article, section, and paragraph captions in this
Agreement are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions of this Agreement.
9.13 Assignment.
This Agreement shall not be assignable by operation of law or otherwise,
provided, that the parties agree that this Agreement may be assumed by Weblink
as a debtor-in-possession in the Weblink Bankruptcy Cases and may be assumed by
Metrocall as a debtor in-possession in the Metrocall Bankruptcy Cases. Any
assignment in contravention of the preceding sentence shall be null and void.
[execution page to follow]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties to this Agreement as of the dates
first written above.
WEBLINK WIRELESS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
METROCALL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx III
------------------------------
Name: Xxxxxxx X. Xxxxxxx III
Title: Chairman of the Board,
President and Chief Executive
Officer
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