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EXHIBIT 2.3
STOCKHOLDERS VOTING AGREEMENT AND PROXY
STOCKHOLDERS VOTING AGREEMENT AND PROXY, dated as of June 26, 1998
(this "Agreement"), by and among AT&T Wireless Services, Inc., a Delaware
corporation ("Wireless"), and the stockholders identified on Annex A hereto
(each, an "MC Stockholder" and collectively, the "MC Stockholders") of
Metrocall, Inc., a Delaware corporation ("MC").
WHEREAS, MC and Wireless have entered into a Stock Purchase Agreement
of even date herewith (the "Stock Purchase Agreement"), pursuant to which
Wireless and certain of its affiliates have agreed to sell their paging and
messaging business and a 50KHz/50KHz Narrowband Personal Communications Service
license to MC upon the terms and subject to the conditions set forth therein
(the "Transaction");
WHEREAS, as of the date hereof, each of the MC Stockholders is the
beneficial owner of, and has the sole right to vote and dispose of, the number
of shares (the "Owned Shares") of the common stock, par value $.01 per share,
of MC (the "MC Shares") which is set forth opposite such MC Stockholder's name
in Annex A;
WHEREAS, the issuance of Series C Convertible Preferred Stock of MC as
part of the consideration for the Transaction (the "Convertible Preferred
Stock") will be subject to approval by MC's stockholders; and
WHEREAS, as a condition to its willingness to enter into the Stock
Purchase Agreement, Wireless has required that each of the MC Stockholders
agree to vote their Owned Shares as described herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Representation and Warranty of the MC Stockholders. Each of
the MC Stockholders, individually and not jointly, represents and warrants to
Wireless with respect to itself that:
(a) such MC Stockholder is the beneficial owner of the
number of MC Shares set forth opposite such MC Stockholder's name under the
column "Total Shares" in Annex A hereto, free and clear of any security
interests, liens, charges, encumbrances, equities, claims, options (other than
pledges pursuant to commercially customary brokers margin accounts) or
limitations of whatever nature and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
the Owned Shares), other than those arising under the Securities Act of 1933,
as amended, and applicable state securities laws;
(b) other than the MC Shares set forth by such MC
Stockholder's name in Annex A hereto as "Total Shares," such MC Stockholder
does not own, of record or beneficially, any MC Shares;
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(c) this Agreement has been duly authorized by all
necessary action on the part of such MC Stockholder, has been duly executed by
such MC Stockholder and constitutes a valid and binding agreement of such
stockholder enforceable against such stockholder in accordance with its terms;
and
(d) neither the execution and delivery of this Agreement
by such MC Stockholder nor the consummation of the transactions contemplated
hereby will (i) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority or
other person or (ii) conflict with or result in any breach or violation of any
provision of any charter, by-law or agreement to which such MC Stockholder is a
party or by which it or he or she is bound.
2. Agreement to Vote or Consent. Each MC Stockholder hereby
agrees to attend the meeting of stockholders of MC to be called pursuant to
Section 6.5 of the Stock Purchase Agreement (including any adjournment or
adjournments thereof) ("MC Meeting"), in person or by proxy, and to vote, or
cause to be voted (or, if the stockholders of MC act by written consent, to
consent in writing, or cause to consent in writing, with respect to) all MC
Shares, whether issued heretofore or hereafter, that such MC Stockholder owns
or has the right to vote or consent: (a) in favor of the issuance of the
Convertible Preferred Stock in the Transaction and (b) in favor of a proposed
amendment to the Amended and Restated Certificate of Incorporation of MC, as
amended, to increase the authorized number of MC Shares to 100,000,000.
3. Proxy. To secure each MC Stockholder's commitments set forth
in Section 2, each MC Stockholder constitutes and appoints Wireless or its
officers, and each of them, with full power of substitution, to be its true and
lawful proxy and attorney-in-fact from the date hereof until conclusion of the
MC Meeting (including any adjournment or adjournments thereof) to vote all MC
Shares then beneficially owned by such MC Stockholder in accordance with
Section 2. This proxy shall be deemed coupled with an interest, and is
irrevocable during the term of this Agreement and will survive the death,
incompetency and disability of any MC Stockholder who is an individual and will
survive the merger, liquidation, dissolution or other termination of any MC
Stockholder that is an entity.
4. Revocation of Proxies and Consents. To the extent
inconsistent with Section 2 hereof, each MC Stockholder hereby revokes any and
all previous proxies or written consents with respect to such MC Stockholder's
Owned Shares.
5. Transfer. From the date hereof until the first to occur of
the closing of the Transaction or the termination of the Stock Purchase
Agreement, no MC Stockholder will, directly or indirectly, sell, transfer,
pledge (other than pledges pursuant to commercially customary brokers margin
accounts) or otherwise dispose of, any Owned Shares (collectively, a
"Transfer") to any person other than Wireless or its designee, or grant an
option with respect to any of the foregoing, or enter into any other agreement
or arrangement with respect to any of the foregoing, unless such Owned Shares
remain subject to the MC Stockholder's obligations hereunder in the hands of
any transferee, provided, that nothing in this Agreement shall preclude
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the MC Stockholder from transferring that number of MC Shares in excess of the
number of Owned Shares free and clear of any obligations hereunder.
6. Specific Enforcement. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this Agreement and that
the obligations of the parties hereto shall be specifically enforceable, in
addition to any other remedy which may be available at law or in equity.
7. Termination. This Agreement shall terminate on the earliest
of (i) the conclusion of the MC Meeting (including any adjournment thereof),
(ii) the agreement of the parties hereto to terminate this Agreement, or (iii)
termination of the Stock Purchase Agreement, but in any event shall terminate
no later than nine (9) months from the date of the Stock Purchase Agreement.
8. Successors and Assigns. This Agreement shall not be assigned,
except by operation of law or otherwise without the prior written consent of
the other parties hereto. This Agreement will be binding upon, inure to the
benefit of and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
9. Scope of Agreement. Nothing in this Agreement shall, is
intended to, or shall be construed to, limit or in any way restrict the ability
of any MC Stockholder to act in such MC Stockholder's capacity as an officer or
director of MC or to exercise or carry out such MC Stockholder's fiduciary
duties as an officer or director of MC, so long as such MC Stockholder fulfills
his obligations under this Agreement.
10. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
upon receipt, if delivered personally or by nationally recognized overnight
courier service, or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like changes of address) or
sent by electronic transmission to the telecopier number specified below:
If to Wireless, to both:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxx, Director, Mergers and Acquisitions
Facsimile Number: (000) 000-0000
and
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AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
With copies (which shall not constitute notice) to:
AT&T Wireless Services, Inc.
Xxxxx 000
000 000xx Xxxxxx, X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
and
Xxxxx X. Xxxxxxxx
Xxxxxx & Xxxxx LLP/Xxxxxxx Xxxxxxxx X.X.
Suite 4500
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
If to the MC Stockholders, to:
c/o Wilmer, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
11. Amendments. This Agreement may not be amended, changed
supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Wireless and each MC Stockholder.
12. Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties hereto relating to the subject
matter hereof and supersedes all prior agreements and understandings relating
to such subject matter. There are no representations, warranties or covenants
by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement.
13. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
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economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
14. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware.
[Execution Page Following]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the MC Stockholders and a duly authorized officer of Wireless on
the day and year first written above.
AT&T WIRELESS SERVICES, INC.
/s/ XXXXX X. XXXXXX
By: ---------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
/s/ XXXXXX X. XXXXXXXXXX
-------------------------- 70,000 70,000
Xxxxxx X. Xxxxxxxxxx
/s/ XXXXX X. XXXXX, XX.
-------------------------- 3,545,200 3,545,200
Xxxxx X. Xxxxx, Xx.
/s/ XXXXXXX X. XXXXX
-------------------------- 200,000 200,000
Xxxxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXXXX, III
-------------------------- 300,000 339,956
Xxxxxxx X. Xxxxxxx, III
/s/ XXX X. XXXXXX
-------------------------- 9,000 9,000
Xxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXXXX
-------------------------- 305 305
Xxxxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXXXXX
-------------------------- 900 900
Xxxxxx X. Xxxxxxxxx
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ANNEX A
MC STOCKHOLDERS
Number of Total
Name and Signature Owned Shares Shares
------------------ ------------ ------
/s/ XXXXXX X. XXXXXX
-------------------------- 39,765 39,765
Xxxxxx X. Xxxxxx
/s/ XXXXXXX X. XXXXXX, III
-------------------------- 50,000 50,000
Xxxxxxx X. Xxxxxx, III
/s/ XXXX XXXXX
-------------------------- 10,000 10,000
Xxxx Xxxxx
/s/ XXX XXXXXXXXXXXX
-------------------------- 1,900,000* 2,151,107
Xxx Xxxxxxxxxxxx
/s/ XXXXXX X. XXXXXX
-------------------------- 865,763 865,763
Xxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXX
-------------------------- 12,061 12,061
Xxxxx X. Xxxxxxx
* Approximately 250,000 shares are subject to stock options previously granted
by Xx. Xxxxxxxxxxxx.
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ANNEX A
MC STOCKHOLDERS
Number of Number of
Name and Signature Owned Shares Owned Shares
------------------ ------------ ------------
UBS CAPITAL LLC 970,365
By: /s/ XXXXXXX XXXXXX
--------------------------
Name: Xxxxxxx Xxxxxx
Its: Partner
By:
--------------------------
Name:
Its:
WILMINGTON SECURITIES, INC. 1,154,185
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxxx X. XxXxxxxxx
Its: Vice President
JULIET CHALLENGER, INC. 644,366
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxxx X. XxXxxxxxx
Its: Vice President
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ANNEX A
MC STOCKHOLDERS
Number of
Name and Signature Owned Shares
------------------ ------------
X.X. Xxxxxxxxxxxx and Xxxxxx X. 14,130
Xxxxxx, Trustees U/A/T Dated
8/28/68 for Juliet Xxx Xxxxxxx
X.X. Xxxxxxxxxxxx and Xxxxxx X. 14,130
Xxxxxx, Trustees U/A/T Dated
8/28/68 for Xxxxxx Xxxxxxxx
Xxxxxxx
X.X. Grefenstette and Xxxxxx X. 14,130
Xxxxxx, Trustees U/A/T Dated
8/28/68 for Xxxxx Xxx
Xxxxxxx, Xx.
X.X. Xxxxxxxxxxxx and Xxxxxx X. 14,130
Xxxxxx, Trustees U/A/T Dated
8/28/68 for Xxxxxxx Xxxxxxx
Xxxxxxx
By: /s/ X.X. XXXXXXXXXXXX
---------------------------
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ XXXXXX X. XXXXXX
--------------------------
Xxxxxx X. Xxxxxx, Trustee
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ANNEX A
MC STOCKHOLDERS
Number of
Name and Signature Owned Shares
------------------ ------------
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx 166,028
Xxxxxxx and X.X. Xxxxxxxxxxxx,
Trustees of the Xxxxx X. Xxxxxxx
Trust U/A Dated November 18, 1985
By: /s/ X.X. XXXXXXXXXXXX
---------------------------
X.X. Xxxxxxxxxxxx, Trustee
