EXHIBIT 10.12
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
This Amendment No. 3 dated September 3, 1998 hereby amends the Rights
Agreement originally dated as of October 13, 1995, as amended on June 29, 1998
and August 18, 1998 (the "Agreement"), between Arch Communications Group, Inc.,
a Delaware corporation (the "Company"), and The Bank of New York, a national
banking association, as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, no Person has become an Acquiring Person as such terms are defined
in the Agreement; and
WHEREAS, the Company has directed the Rights Agent to enter into this
Amendment No. 3 pursuant to Section 27 of the Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the parties hereby agree as follows:
1. Section 1(ii) of the Agreement is hereby deleted in its entirety and the
following substituted in lieu thereof:
(ii) "Exempted Person" shall mean: (A) Sandler Capital Partners IV,
L.P. and Sandler Capital Partners IV FTE, L.P. (collectively,
"Sandler"), unless and until the earlier of (I) such time as Sandler,
together with its Affiliates, directly or indirectly, becomes the
Beneficial Owner of more than 22.0% of the Common Stock then
outstanding (or such greater percentage as may result solely from the
acquisition of shares of the Company's Series C Convertible Preferred
Stock or shares of Common Stock issued to effect the payment of
dividends, conversion or redemption thereof) (the "Sandler Exempt
Threshold") or (II) the Effective Time (as defined below), in which
event Sandler immediately shall cease to be an Exempted Person; (B) X.
X. Xxxx Asset Management Co., L.L.C., together with its Affiliates
(collectively, "Xxxx"), unless and until such time as Xxxx, directly
or indirectly, becomes the Beneficial Owner of Common Stock in excess
of the Xxxx Exempt Threshold (as defined below), in which event Xxxx
immediately shall cease to be an Exempted Person; (C) Credit Suisse
First Boston Corporation, together with its Affiliates (collectively,
"CS First Boston"), unless and until such time as CS First Boston,
directly or indirectly, becomes the Beneficial Owner of Common
Stock in excess of the CS First Boston Exempt Threshold (as defined
below), in which event CS First Boston immediately shall cease to be
an Exempted Person; (D) Whippoorwill Associates, Inc., together with
its Affiliates, including, without limitation, any accounts and
investment funds managed by it or its Affiliates (collectively,
"Whippoorwill"), unless and until such time as Whippoorwill, directly
or indirectly, becomes the Beneficial Owner of Common Stock in excess
of the Whippoorwill Exempt Threshold (as defined below), in which case
Whippoorwill immediately shall cease to be an Exempted Person; and (E)
The Northwestern Mutual Life Insurance Company, together with its
Affiliates (collectively, "Northwestern Mutual"), unless and until
such time as Northwestern Mutual, directly or indirectly, becomes the
Beneficial Owner of Common Stock in excess of the Northwestern Mutual
Exempt Threshold (as defined below), in which event Northwestern
Mutual immediately shall cease to be an Exempted Person. For purposes
of this Agreement, the Xxxx Exempt Threshold shall mean the lesser of
(I) 33.0% of the Common Stock then outstanding or (II) a percentage of
the Common Stock then outstanding equal to (x) that percentage of
shares of Common Stock directly or indirectly Beneficially Owned by
Xxxx immediately after the Effective Time plus (y) 5.0%; the CS First
Boston Exempt Threshold shall mean the lesser of (I) 26.0% of the
Common Stock then outstanding or (II) a percentage of the Common Stock
then outstanding equal to (x) that percentage of shares of Common
Stock directly or indirectly Beneficially Owned by CS First Boston
immediately after the Effective Time plus (y) 5.0%; the Whippoorwill
Exempt Threshold shall mean the lesser of (I) 27.0% of the Common
Stock then outstanding or (II) a percentage of the Common Stock then
outstanding equal to (x) that percentage of shares of Common Stock
directly or indirectly Beneficially Owned by Whippoorwill immediately
after the Effective Time plus (y) 5.0%; and the Northwestern Mutual
Exempt Threshold shall mean the lesser of (I) 15.5% of the Common
Stock then outstanding or (II) a percentage of the Common Stock then
outstanding equal to (x) that percentage of shares of Common Stock
directly or indirectly Beneficially Owned by Northwestern Mutual
immediately after the Effective Time plus (y) 5.0%. The Sandler Exempt
Threshold, the Xxxx Exempt Threshold, the CS First Boston Exempt
Threshold, the Whippoorwill Exempt Threshold and the Northwestern
Mutual Exempt Threshold are collectively referred to herein as the
"Exempt Threshold." For purposes of this Section 1(ii), none of
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Xxxx, XX First Boston, Whippoorwill or Northwestern Mutual shall be
deemed the Beneficial Owner of any shares of Common Stock that are
Beneficially Owned by any other Person solely as a result of any such
Person's execution and performance of any Standby Purchase Commitment
(as such term is defined in the Plan and Agreement of Merger between
the Company, Farm Team Corp., a wholly-owned Subsidiary of the
Company, MobileMedia Corporation and MobileMedia Communications, Inc.,
dated as of August 18, 1998) (as it may be amended from time to time,
the "Merger Agreement") and Common Stock shall be deemed to include
shares of Common Stock issuable upon conversion of shares of the
Company's Series C Convertible Preferred Stock, $.01 par value per
share. For purposes of this Agreement the Effective Time shall have
the meaning ascribed to such term in the Merger Agreement.
2. Section 11(a)(ii) of the Agreement is hereby deleted and the following
substituted in lieu thereof:
(a)(ii)Subject to Section 24 of this Agreement, in the event that any
Person shall become an Acquiring Person, unless the event causing the
15.0% threshold (or, in the case of an Exempted Person, the applicable
Exempt Threshold) to be crossed is a transaction set forth in Section
13(a) hereof, or is a Permitted Offer, then, promptly following the
first occurrence of such event, proper provisions shall be made so
that each holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of a number of one one-thousandths of
a share of Preferred Stock, such number of shares of Common Stock of
the Company that equals the result obtained by (x) multiplying the
then current Purchase Price by the then number of one one-thousandths
of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by 50.0% of the
current market price (determined pursuant to Section 11(d) hereof) per
share of Common Stock on the date of such occurrence (such number of
shares, the "Adjustment Shares").
3. Section 29 of the Agreement is hereby amended by adding the following at
the end thereof:
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With respect to any action to be taken by the Board of Directors of
the Company to (i) redeem the Rights pursuant to Section 23, (ii)
ordering the exchange of any Rights pursuant to Section 24 or (iii)
amending the definition of "Acquiring Person" in Section 1(a) or
"Exempt Threshold" in Section 1(ii) to increase the number of shares
of Common Stock that may be Beneficially Owned by a Person without
becoming an Acquiring Person, such action must be taken by the
affirmative vote of directors equal to (x) a majority of the directors
then in office, plus (y) one.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be duly
executed and their respective corporate seals to be hereunto affixed and
attested as of the day and year first written above.
ARCH COMMUNICATIONS GROUP, INC.
Attest:
/s/ J. Xxx Xxxxxx By: /s/ X.X. Xxxxx, Xx.
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Name: J. Xxx Xxxxxx Name: X.X. Xxxxx, Xx.
Title: Executive Vice President Title: Chairman of the Board and
and Chief Financial Officer Chief Executive Officer
Seal
THE BANK OF NEW YORK
Attest:
/s/ Xxxxxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Debrent
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Name: Xxxxxxxx Xxxxxxxxx Name: Xxxxxx X. Debrent
Title: Assistant Vice President Title: Vice President
Seal
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