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EXHIBIT 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made this day of
October, 1996 by and between METROCALL, INC., a Delaware corporation ("MC") and
A+ NETWORK, INC., a Tennessee corporation ("AN").
WHEREAS, MC and AN entered into a certain AGREEMENT AND PLAN OF MERGER
dated as of May 16, 1996 (the "Merger Agreement"); and
WHEREAS, MC and AN have agreed to amend Section 1.2 of the Merger Agreement
to allow MC to request that certain persons be elected to the Board of Directors
of AN; and
WHEREAS, MC and AN have agreed to amend certain terms of the Variable
Common Rights issued as part of the Merger Consideration;
NOW, THEREFORE, in consideration of the foregoing and the respective
agreements set forth herein and in the Merger Agreement, the parties hereto
agree as follows:
1. Definitions. Unless otherwise defined herein or unless the context
otherwise requires, capitalized terms used in this Amendment shall have the
meanings ascribed to them in the Merger Agreement.
2. Amendment of Merger Agreement.
(a) Section 1.2 of the Merger Agreement is hereby amended by adding
the following subsection (e):
If requested by MC, AN shall, after receipt of a Final Regulatory
Order from the FCC permitting the Merger to be consummated, and before
acquisition of a majority of the shares of AN Common Stock or
consummation of the Merger, request that its Board of Directors, at a
meeting duly called and held, approve by a vote of at least 66 2/3% of
the members of the AN Board of Directors who were directors on October
24, 1995 (or whose nomination for election was approved by a vote of at
least 66 2/3% of the directors then still in office who were either
directors at such date or whose election or nomination for election was
previously so approved) the election of the persons identified in Annex
B as directors of AN effective immediately prior to the closing of the
Merger and that it amend AN's Bylaws as necessary to permit the
foregoing changes in its Board of Directors. AN will supply MC with a
certificate of vote attesting to the foregoing. AN agrees to use its
best efforts to cause the election of such persons to the Board of
Directors of AN and the bylaw amendment as set forth in the preceding
sentence; provided that neither AN nor any of its directors shall be
obligated to effect a change in AN's Board of Directors and it shall not
be a condition of the Merger that any change be effected.
(b) Section 4.1(d) of the Merger Agreement is hereby amended by
deleting ", (i)" in the first line thereof and by inserting a "." prior to
the semicolon and deleting the remainder to the subsection.
(c) Annex C to the Merger Agreement is hereby amended to read in its
entirety as Annex C attached hereto.
3. Effect of Amendment. All of the terms and provisions of the Merger
Agreement, other than as amended hereby, are hereby confirmed and remain in full
force and effect as of the date of this Amendment.
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4. Miscellaneous.
(a) Subject to applicable law, this Amendment may be amended, modified
and supplemented in any and all respects, whether before or after any vote
of the shareholders of AN contemplated by the Merger Agreement, by written
agreement of the parties hereto, at any time prior to the Closing Date with
respect to any of the terms contained herein.
(b) This Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(c) This Agreement shall be governed and construed in accordance with
the law of the State of Delaware without giving effect to principles of
conflicts of law thereof.
IN WITNESS WHEREOF, MC and AN have caused this Amendment to be signed by
their respective officers thereunto duly authorized as of the date first written
above.
METROCALL, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
A+ NETWORK, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman
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ANNEX C
PRINCIPAL TERMS OF INDEXED VARIABLE COMMON RIGHTS ("VCRS")
ISSUER..................... Metrocall, Inc. ("MC")
PAYMENT AT MATURITY........ Following the maturity of a VCR, the holder of such
VCR (the "VCR Holder") shall have the right to
receive the amount, if any, by which the Target
Price exceeds the greater of the Current Market
Value and the Minimum Price (each as defined
below). The VCRs shall mature on the Maturity Date
unless otherwise extended to the Extended Maturity
Date (as defined below).
FORM OF PAYMENT............ MC, at its option, may pay any amount due under the
terms of the VCRs to the VCR Holders in cash or MC
Common Stock valued based on the Current Market
Value as defined below; except that if an Event of
Default has occurred and is continuing, MC must pay
the Default Amount in cash or shares of Metrocall
Preferred Stock having a liquidation preference
over Metrocall Common Stock in an amount equal to
the Default Amount.
TARGET PRICE............... "Target Price" means (i) at the Maturity Date,
$21.10 reduced but not increased by the "Index
Factor", as hereinafter defined, and (ii) at the
Extended Maturity Date, $25.10 reduced but not
increased by the Index Factor. In each case, such
Target Prices shall be adjusted upon the occurrence
of any event described in the Section entitled
"Antidilution" set forth below.
CURRENT MARKET VALUE....... "Current Market Value" means with respect to the
Maturity Date and the Extended Maturity Date, the
median of the averages of the closing bid prices on
the Nasdaq NMS (or such other exchange on which
such shares are then listed) of shares of MC's
Common Stock, par value $.01 per share (the "Common
Stock"), during each 20 consecutive trading day
period that both begins and ends in the Valuation
Period. "Valuation Period" means the 60 trading day
period immediately preceding (and including) the
Maturity Date or the Extended Maturity Date, as the
case may be.
MINIMUM PRICE.............. "Minimum Price" means (i) at the Maturity Date,
$16.10, and (ii) at the Extended Maturity Date,
$18.10. In each case, subject to adjustment upon
the occurrence of any event described in the
Section entitled "Antidilution" set forth below.
INDEX FACTOR............... An Index Factor shall be calculated based upon the
ratio of the relevant ending period stock prices
for the Comparable Paging Company Index (the Index
Factor numerator) and the initial Comparable Paging
Company Index (the Index Factor denominator). The
Comparable Paging Company Index shall consist of
the stocks of ARCH COMMUNICATIONS GROUP, INC.,
MOBILMEDIA COMMUNICATIONS, INC., AND PRONET, INC.,
or each's successors. The initial Comparable Paging
Company Index shall be equal to the median of the
simple arithmetic average of closing bid prices of
the index group for the 20 trading days preceding
May 14, 1996 (i.e., $24.604). The ending period
Comparable Company Paging Index shall be the median
of the simple arithmetic average of closing bid
prices of the index group as measured in the
identical fashion as MC's closing bid prices during
the relevant Valuation Periods preceding the
Maturity
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Date, Extended Maturity Date, or Disposition Date,
as the case may be. In each case, such adjustments
shall be made, as appropriate, for each company's
stock prices that is included in the Comparable
Paging Company Index, upon the occurrence of any
event similar to that described in the
"Antidilution" section below.
EARLY TERMINATION.......... If the closing bid prices of the Common Stock
exceeds (i) $21.10 for any 50 calendar day period
prior to the Maturity Date, or (ii) $25.10 for any
50 calendar day period between the Maturity Date
and the Extended Maturity Date, then the VCRs shall
immediately expire and be of no further force and
effect.
MATURITY DATE; EXTENSION
THEREOF.................. "Maturity Date" means the first anniversary of the
effective time (the "Effective Time") of the merger
between MC and A+ Network, Inc. ("AN") (the
"Merger"); provided, however, that MC, at its
option, may extend the Maturity Date to the second
anniversary of the Effective Time (the "Extended
Maturity Date"). MC shall exercise either such
option to extend by publishing notice of such
exercise in the Wall Street Journal (Eastern
Edition), or if the Wall Street Journal is not then
published, such other newspaper with general
circulation in the City of New York, New York no
later than one business day preceding the Maturity
Date, as the case may be.
NO INTEREST................ Other than in the case of interest on the Default
Amount (as defined below), no interest shall accrue
on any amounts payable to the VCR Holders pursuant
to the terms of VCRs.
DISPOSITION PAYMENT........ Following the consummation of a Disposition (as
defined below), MC shall pay to each VCR Holder for
each VCR held by such VCR Holder an amount, if any,
by which the Discounted Target Price (as defined
below) exceeds the greater of (a) the fair market
value (as determined by an independent nationally
recognized investment banking firm) of the
consideration, if any, received by holders of
Common Stock for each share of Common Stock held by
such holder as a result of such Disposition and (b)
the Minimum Price.
DISPOSITION EVENT.......... "Disposition" means (a) a merger, consolidation or
other business combination involving MC as a result
of which no shares of Common Stock shall remain
outstanding, (b) a sale, transfer or other
disposition, in one or a series of transactions, of
all or substantially all of the assets of MC or (c)
a reclassification of Common Stock as any other
capital stock of MC or any other person.
ACCELERATION UPON EVENT OF
DEFAULT.................. If an Event of Default (as defined below) occurs
and is continuing, either the bank or trust company
acting as the trustee (the "Trustee") or VCR
Holders holding at least 25% of the outstanding
VCRs, by notice to MC (and to the Trustee if given
by VCR Holders), may declare the VCRs to be due and
payable, and upon any such declaration, the Default
Amount shall become due and payable and,
thereafter, shall bear interest at an interest rate
of 12% per annum until payment is made to the
Trustee. "Default Amount" means the amount, if any,
by which the Discounted Target Price exceeds the
Minimum Price.
DISCOUNTED TARGET PRICE.... "Discounted Target Price" means (a) if a
Disposition or an Event of Default shall occur
prior to the Maturity Date, $21.10 reduced but not
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increased by the relevant Index Factor, discounted
to the Disposition Payment Date (as defined below)
or the Default Payment Date (as defined below), as
the case may be, at a per annum rate of 8%; or (b)
if a Disposition or an Event of Default shall occur
after the Maturity Date but prior to the Extended
Maturity Date, $25.10 reduced but not increased by
the relevant Index Factor discounted to the date of
the Disposition Payment Date or Default Payment
Date, as the case may be, at a per annum rate of
8%. In each case, the Discounted Target Price and
the Minimum Price shall be adjusted upon the
occurrence of any event described in the Section
entitled "Antidilution" set forth below.
"Disposition Payment Date", with respect to a
Disposition, means the date established by MC for
payment of the amount due on the VCRs in respect of
such Disposition, which in no event shall be more
than 38 days after the date on which such
Disposition was consummated. "Default Payment Date"
means the date on which the VCRs become due and
payable upon the declaration thereof following an
Event of Default.
EVENTS OF DEFAULT.......... "Event of Default", with respect to the VCRs, means
any of the following which shall have occurred and
be continuing; (a) default in the payment of all or
any part of the amounts payable in respect of any
of the VCRs as and when the same shall become due
and payable following the Maturity Date or the
Extended Maturity Date, the Disposition Payment
Date or otherwise; (b) material default in the
performance, or material breach, of any material
covenant or warranty of MC,and continuance of such
material default or breach for a period of 98 days
after written notice has been given to MC by the
Trustee or to MC and the Trustee by VCR Holders
holding at least 25% of the outstanding VCRs; or
(c) certain events of bankruptcy, insolvency,
reorganization or other similar events in respect
of MC.
ANTIDILUTION............... If MC shall in any manner subdivide (by stock
split, stock dividend or otherwise) or combine (by
reverse stock split or otherwise) the number of
outstanding shares of Common Stock, MC shall
correspondingly subdivide or combine the VCRs and
shall appropriately adjust the Target Price, the
Minimum Price and the Discounted Target Price.
TRADING.................... None of MC or any of its affiliates shall trade in
shares of Common Stock during the period commencing
18 trading days before the Valuation Period and
ending on the last day of the Valuation Period,
except with respect to employee benefit plans and
other incentive compensation arrangements.
VCR AGREEMENT.............. The VCRs will be issued pursuant to a VCR Agreement
between MC and the Trustee. MC shall use its
reasonable best efforts to cause the VCR Agreement
to be qualified under the Trust Indenture Act of
1939, as amended.
REGISTRATION............... The VCRs will be issued in registered form.
DIVIDENDS.................. If any dividends are paid on the MC Common Stock
prior to the Maturity Date or the Extended Maturity
Date, as applicable, the holders of the VCRs shall
have no right to receive any such dividends.
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