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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
July 1, 1997, by and among METROCALL, INC., a Delaware corporation (the
"Company") and PAGE AMERICA GROUP, INC., a New York corporation ("Page
America" or the "Holder").
RECITALS
WHEREAS, the Company, Page America, its wholly owned subsidiaries, Page
America of New York, Inc., Page America of Illinois, Inc., an Illinois
corporation, Page America Communications of Indiana, Inc., an Indiana
corporation, and Page America of Pennsylvania, a Pennsylvania corporation
(collectively, the "Sellers"), have entered into that certain Amended and
Restated Asset Purchase Agreement, dated January 30, 1997 and amended as of
March 28, 1997 (the "Purchase Agreement"), pursuant to which, in pertinent
part, the Company purchased and the Sellers sold all or substantially all of
the Sellers' Assets ("the Asset Purchase and Sale");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company paid
part of the Purchase Price in shares of the Company's common stock, par value
$.01 per share , ("Common Stock"); and
WHEREAS, the Company registered such shares of Common Stock on Form S-4
before the Closing of the Asset Purchase and Sale; and
WHEREAS, Page America may be deemed to be underwriters of the Common Stock
pursuant to Rule 145(c) of the Securities Act and may thus be subject, inter
alia, to the volume limitations on Page America's transfer of shares of Common
Stock pursuant to Rule 144(e) promulgated under the Securities Act;
WHEREAS, as a result of the foregoing and pursuant to the terms of the
Purchase Agreement, the Company has agreed to register the shares of Common
Stock received by Page America thereunder pursuant to the terms and conditions
set forth herein.
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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I.
DEFINITIONS
1. "Commission" means the Securities and Exchange Commission.
2. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
3. "Registrable Securities" means the shares of Common Stock
received by the Page America from the Company pursuant to the Purchase
Agreement. Any Registrable Security will cease to be a Registrable Security
when (i) such Registrable Security has been transferred pursuant to an
effective registration statement under the Securities Act covering such
Registrable Security, (ii) such Registrable Security is no longer held of
record by Page America or its successors or assigns, or (iii) the holder of
such Registrable Security is then able to use Rule 144 promulgated under the
Securities Act (or any successor provision) to transfer such Registrable
Security without the volume limitations under Rule 144(e).
4. "Securities Act" means the Securities Act of 1933, as amended.
II.
REGISTRATION STATEMENT
As soon as practicable following the issuance and transfer of Common Stock
by the Company to Page America pursuant to the terms of the Purchase Agreement
(but in no event later than twenty (20) days thereafter), the Company shall
file with the Commission on Form S-3 (or such other form as may be appropriate)
(the "Registration Statement"), with respect to the sale of all of the
Registrable Securities and any other securities of the Company that the Company
elects to include therein; provided, however, that the Registrable Securities
shall have priority in inclusion in the Registration Statement over such other
securities. The Company shall use its best efforts to have the Registration
Statement declared effective by the Commission under the Securities Act as soon
as possible, and to keep the Registration Statement effective as long as there
are Registrable Securities. The Company further agrees, if necessary, to
supplement or make amendments to the Registration Statement if required by the
registration form used by the Company for the Registration Statement or by the
instructions applicable to such registration form or by the Securities Act or
the rules and regulations thereunder, and to comply with the requirements of
the Securities Act and the rules and regulations promulgated by the Commission
thereunder relating to the sale or other disposition of the securities covered
by the Registration Statement. The Company may postpone for up to ninety (90)
days the sale of any Registrable Securities pursuant to the Registration
Statement if the Company reasonably believes that such sale will have a
material adverse effect on any proposal or plan by the Company or any of its
subsidiaries to engage in any financing, acquisition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
other significant transaction; provided that the Company shall have the right
to so postpone such filing or effectiveness only one (1) time during any period
of twelve (12) consecutive months.
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III.
REGISTRATION PROCEDURES
Following the issuance of Common Stock by the Company to Page America
pursuant to the terms of the Purchase Agreement, the Company will as
expeditiously as possible:
(a) furnish to Page America, prior to the filing of the
Registration Statement, if requested in writing, copies of the Registration
Statement as proposed to be filed, and thereafter furnish to the Holder such
number of copies of the Registration Statement, each amendment and supplement
thereto (including any exhibits thereto requested by such party), the
prospectus included in the Registration Statement (including each preliminary
prospectus) and such other documents as the Holder may reasonably request in
writing in order to facilitate the disposition of the Registrable Securities
owned by the Holder; provided, however, that the obligation of the Company to
deliver copies of prospectuses or preliminary prospectuses to the Holder is
subject to the receipt by the Company of reasonable assurances from the Holder
that the Holder will comply with the applicable provisions of the Securities
Act and of such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses or preliminary prospectuses;
(b) use its best efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as the Holder may reasonably request and do any and all other
acts and things which may be reasonably necessary to enable the Holder to
consummate the disposition in such jurisdictions of the Registrable Securities;
provided, however, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(c) notify the Holder in writing (i) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, and (ii) of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of the Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and promptly make available to the Holder any such supplement or
amendment;
(d) make available for inspection by the Holder and any
attorney, accountant or other professional retained thereby (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such inspectors in
connection with the Registration
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Statement. Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) in the judgment of counsel to the
Company the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the Registration Statement, or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Page America agrees that information obtained by such
party as a result of such inspections shall be deemed confidential and shall
not be used by such party as the basis for any market transactions in the
securities of the Company unless and until such is made generally available to
the public. The Holder further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
and
(e) do any and all such other acts and things as may be
reasonably necessary or advisable to enable holders of Registrable Securities
to consummate the public sale or other disposition of their Registrable
Securities in such jurisdictions as are covered by the Registration Statement.
The Company may require the Holder to promptly furnish in writing to the
Company such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information as may be legally required in connection with such registration.
Page America agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in subsection 3(c) hereof,
Page America will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement until receipt of the copies of the
supplemented or amended prospectus contemplated by subsection 3(c) hereof, and,
if so directed by the Company, the Holder will deliver to the Company all
copies, other than permanent file copies then in their possession, of the most
recent prospectus covering such Registrable Securities at the time of receipt
of such notice.
IV.
REGISTRATION EXPENSES
All fees and expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company, including,
without limitation, the following fees and expenses: (a) all registration and
filing fees; (b) the fees and expenses of the Company's compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities); (c) printing expenses; (d) the fees and disbursements of counsel
for the Company, and the fees and expenses for independent certified public
accountants, underwriters and other persons retained by the
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Company in connection with such registration; (e) any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities;
(f) fees of transfer agents and registrars; (g) fees of the national
Association of Securities Dealers, Inc.; and (h) messenger and delivery
expenses. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance obtained by the
Company, and the expenses and fees for listing or authorizing for quotation the
securities to be registered on each securities exchange on which any shares of
Common Stock are then listed or quoted.
V.
INDEMNIFICATION; CONTRIBUTION
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify and hold harmless the Holder from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
prospectus contained therein or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arising out of
or based upon the Company's breach of any representation, warranty, covenant or
agreement contained in this Agreement; provided, however, that the Company
shall not be liable in any such case to the extent any of such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or allegation thereof based upon information
furnished in writing to the Company by the Holder expressly for use therein.
(b) INDEMNIFICATION BY THE HOLDER. The Holder agrees to
indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to the Holder, but only with
respect to information furnished in writing by the Holder or on its behalf
expressly for use in the Registration Statement or prospectus relating to the
Registrable Securities, any amendment or supplement thereto or any preliminary
prospectus. In case any action or proceeding shall be brought against the
Company or its directors or officers, or any such controlling person, in
respect of which indemnity may be sought against the Holder, the Holder shall
have the rights and duties given to the Company, and the Company or its
directors or officers or such controlling person shall have the rights and
duties given to the Holder, by the preceding subsection hereof.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
action or proceeding (including any governmental investigation) shall be
brought or asserted against any person entitled to indemnification under
subsections (a) or (b) above (an
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"Indemnified Party") in respect of which indemnity may be sought from any party
who has agreed to provide such indemnification (an "Indemnifying Party"), the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to such Indemnified Party, and shall assume
the payment of all expenses. Such Indemnified Party shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof; but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party has agreed to pay such
fees and expenses, or (ii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there is a conflict of interest on the part of counsel employed by
the Indemnifying Party to represent such Indemnified Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that
Indemnified Party elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Party;
it being understood, however, that the Indemnifying Party shall not, in
connection with any one cause action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such Indemnified
Parties, (which firm shall be designated in writing by such Indemnified
Parties). The Indemnifying Party shall not be liable for any settlement of any
such action or proceeding effected without its written consent, but if settled
with its written consent or if there be a final judgment of the plaintiff in
any such action or proceedings, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to
the extent stated above) by reason of such settlement of judgment.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 5 is unavailable to the Indemnified Parties in respect of any
losses, claims, damages, liabilities or judgment referred to herein, then such
Indemnifying Party, in lieu of Indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments in the following
manner: as between the Company on the one hand and Page America on the other,
in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and Page America on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of Page
America on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the party's relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the means of
subsection 11(f) of the Securities Act) shall, be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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(e) SURVIVAL. The indemnity and contribution agreements
contained in this Section 5 shall remain operative and in full force and effect
with respect to any sales of Registrable Securities made pursuant to the
Registration Statement regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Indemnified Party or by or
on behalf of the Company, and (iii) the consummation of the sale or successive
resale of the Registrable Securities.
VI.
MISCELLANEOUS
(a) AMENDMENTS AND WAIVERS. The provision of this
agreement may not be amended, modified or supplements, and waivers or consents
to departures from the provisions hereof may not be given other than as
initially agreed upon in writing by the Company and Page America.
(b) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
regular mail, registered first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:
(i) if to the Holder, initially to:
Bariston Associates, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx
Attn: Xxxxx X. Xxxxx
Fax No.: 000-000-0000
with a copy to:
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax No.: 000-000-0000
and thereafter at such other address as may
be designated from time to time by notice
given in accordance with the provisions of
this Section.
(ii) if to the Company:
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Metrocall, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx,
Chief Financial Officer and Treasurer
Fax No.: 000-000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Fax No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
(c) SUCCESSORS AND ASSIGNS. The Holder may not assign
any rights or benefits under this Agreement without prior written consent of
the Company, which consent shall not be unreasonably withheld. The Company may
not assign any rights or benefits under this Agreement without prior written
consent of the Holder, which consent shall not be unreasonably withheld. This
Agreement shall inure to the benefit of and be binding upon the permitted
successor and assigns of the Company and the Holder.
(d) COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts and it shall not be necessary for the Company
and the Holder to execute each of such counterparts, but when each has executed
and delivered one or more of such counterparts, the several parts, when taken
together, shall be deemed to constitute one and the same instrument,
enforceable against each in accordance with its terms. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart executed by the party against whom enforcement of this
Agreement is sought.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
(g) SEVERABILITY. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this
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Agreement; and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
(h) ENTIRE AGREEMENT. This Agreement is intended by the
Company and the Holder as final expression of their agreement and is intended
to be a complete and exclusive statement of their agreement and understanding
in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the Company and the Holder with
respect to such subject matter.
(i) THIRD PARTY BENEFICIARIES. Other than Indemnified
Parties not a party hereto and the Holder, this Agreement is intended for the
benefit of the Company and the Holder and their respective successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person or entity.
(j) EFFECTIVENESS. This Agreement shall have no force or
effect unless and until the Company issues Common Stock to the Holder pursuant
to terms of the Purchase Agreement.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
METROCALL, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXX X. XXXXXX
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Title: Executive Vice President
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PAGE AMERICA:
PAGE AMERICA GROUP, INC.
By: /s/ XXXXX X. XXXXX
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Name: XXXXX X. XXXXX
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Title: Chairman
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