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EXHIBIT 2.1
EXECUTION 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 103/8% Notes 4.1(b)
Metrocall 11% Notes 4.1(b)
Metrocall 1145 Underwriter Agreement 6.6
Metrocall 117/8% Notes 4.1(b)
Metrocall 93/4% 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 111/4% 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
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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.
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
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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.
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 11 1/4%
senior unsecured subordinated notes due 2008 issued under and
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pursuant to an Indenture, dated as of January 28, 0000, xxxxxxx Xxxxxxx
xxx Xxxxxx Xxxxxx Trust Company of New York, as Trustee (the "WEBLINK 11
1/4% 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.
"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
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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 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
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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.
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.
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(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.
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
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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 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
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issued, fully paid and nonassessable and owned by Weblink or a
direct or indirect wholly owned Subsidiary of Weblink.
"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")
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pursuant to the Communications Act of 1934, as amended (the
"COMMUNICATIONS ACT"), or the rules, regulations, and policies of
the FCC (the "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
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18
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 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
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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 operations of Weblink and its Subsidiaries,
except those changes that are not, individually or in the aggregate,
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20
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 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
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21
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
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
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22
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.
(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
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23
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 Weblink or prevent, materially delay or materially
impair its ability to consummate the transactions contemplated by
this Agreement.
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(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
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,
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25
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.
(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
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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.
(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
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(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).
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
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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 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
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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 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.
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(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 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
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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.
(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.
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(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
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.
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(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 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
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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.
(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
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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 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
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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.
"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
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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. 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
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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.
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
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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 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
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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 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;
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(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 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
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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, 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;
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(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, 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
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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 (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;
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(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 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.
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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 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
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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 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.
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(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 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
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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. 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.
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(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.
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
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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 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
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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 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.
Section 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:
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(i) To the extent that the Weblink Involuntary
Insolvency Event shall have occurred in the Delaware Court, then
Weblink shall stipulate to 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. Section 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.
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(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
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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 U.S.C. Section 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 U.S.C.
Section 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 U.S.C. Section 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. Section 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.
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"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. Section 1125.
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(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
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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 U.S.C. Section 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 U.S.C.
Section 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 U.S.C. Section 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. Section 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.
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(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. Section 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. Section 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.
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.
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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 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.
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(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.
(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.
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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.
(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.
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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.
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,
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(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 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;
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(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:
(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;
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(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;
(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;
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(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.
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
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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
8.4(c), 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 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
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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
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.
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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.
(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
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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 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
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and if to Weblink:
Weblink Wireless, Inc.
0000 Xxx Xxxxxxx Xxxxx 000
Xxxxxx, Xx. 00000
Attention: Xxxx X. Xxxxxxx
Fax: (000) 000-0000
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
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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 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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