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EXHIBIT 10.2
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated October 21, 1997
between
METROCALL, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED,
TD SECURITIES (USA) INC.,
FIRST UNION CAPITAL MARKETS CORP. and NATIONSBANC XXXXXXXXXX
SECURITIES, INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is made and entered into October 21, 1997, among METROCALL, INC., a Delaware
corporation (the "Company"), and XXXXXX XXXXXXX & CO. INCORPORATED, TD
SECURITIES (USA) INC., FIRST UNION CAPITAL MARKETS CORP. AND NATIONSBANC
XXXXXXXXXX SECURITIES, INC. (the "Placement Agents").
This Agreement is made pursuant to the Placement
Agreement dated October 16, 1997 (the "Placement Agreement"), between the
Company and Xxxxxx Xxxxxxx & Co. Incorporated, as representative of the
Placement Agents, which provides for the sale by the Company to the Placement
Agents of an aggregate of $200,000,000 principal amount of the Company's 9 3/4%
Senior Subordinated Notes Due 2007 (the "Securities"). In order to induce the
Placement Agents to enter into the Placement Agreement, the Company has agreed
to provide to the Placement Agents and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Closing Date" shall mean the Closing Date as defined
in the Placement Agreement.
"Company" shall have the meaning set forth in the
preamble and shall also include the Company's successors.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
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"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to Section
2(a) hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by
the Company under the Indenture containing terms identical to
the Securities (except that (i) interest thereon shall accrue
from the last date on which interest was paid on the
Securities or, if no such interest has been paid, from October
21, 1997, (ii) the Exchange Securities will not contain terms
with respect to transfer restrictions and (iii) the Exchange
Securities will not contain terms providing for additional
interest if the Company fails to comply with its exchange
obligations under this Agreement) and to be offered to Holders
of Securities in exchange for Securities pursuant to the
Exchange Offer.
"Holder" shall mean the Placement Agents, for so long
as they own any Registrable Securities, and each of their
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the
Securities dated as of October 21, 1997, between the Company
and First Union National Bank, trustee, and as the same may be
amended from time to time in accordance with the terms
thereof.
"Majority Holders" shall mean the Holders of a
majority of the aggregate principal amount of outstanding
Registrable Securities; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held
by the Company or any of its affiliates (as such term is
defined in Rule 405 under the 0000 Xxx) (other than the
Placement Agents or subsequent holders of Registrable
Securities if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of
such required percentage or amount.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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"Placement Agents" shall have the meaning set forth
in the preamble.
"Placement Agreement" shall have the meaning set
forth in the preamble.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus,
and any such prospectus as amended or supplemented by any
prospectus supplement, including a prospectus supplement with
respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such
prospectus, and in each case including all material
incorporated by reference therein.
"Registrable Securities" shall mean the Securities;
provided, however, that the Securities shall cease to be
Registrable Securities (i) when a Registration Statement with
respect to such Securities shall have been declared effective
under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) when
such Securities have been sold to the public pursuant to Rule
144(k) (or any similar provision then in force, but not Rule
144A) under the 1933 Act or (iii) when such Securities shall
have ceased to be outstanding.
"Registration Expenses" shall mean any and all
expenses incident to performance of or compliance by the
Company with this Agreement, including without limitation:
(i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii)
all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to
the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its
counsel, (vii) the fees and disbursements of counsel for the
Company and, in the case of a Shelf Registration Statement,
the reasonable fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the
Placement Agents) and (viii) the fees and disbursements of the
independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance,
but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above)
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or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any registration
statement of the Company that covers any of the Exchange
Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including
post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange
Commission.
"Shelf Registration" shall mean a registration
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers all
of the Registrable Securities (but no other securities unless
approved by the Holders whose Registrable Securities are
covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the 1933 Act, or any
similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement,
including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwritten Registration" or "Underwritten
Offering" shall mean a registration in which Registrable
Securities are sold to an Underwriter (as hereinafter defined)
for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable
law or applicable interpretation of the Staff of the SEC, the Company shall use
its best efforts to cause to be filed an Exchange Offer Registration Statement
covering the offer by the Company to the Holders to exchange all of the
Registrable Securities for Exchange Securities and to have such Registration
Statement remain effective until the closing of the Exchange Offer. The
Company shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement has been declared effective by the SEC and use its best
efforts to have the Exchange Offer consummated not later than 60 days after
such effective date. The Company shall commence
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the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made
pursuant to this Registration Rights Agreement and that all
Registrable Securities validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which
shall be a period of at least 20 business days from the date
such notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
the enclosed letters of transmittal, to the institution and at
the address (located in the Borough of Manhattan, The City of
New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw
their election, not later than the close of business on the
last Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his
election to have such Securities exchanged.
As soon as practicable after the last Exchange Date,
the Company shall:
(i) accept for exchange Registrable Securities or
portions thereof tendered and not validly withdrawn pursuant
to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly authenticate and mail
to each Holder, an Exchange Security equal in principal amount
to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other
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applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the Staff of the SEC. The Company shall inform the Placement Agents of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Placement Agents shall have the right, subject to applicable law, to contact
such Holders and otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
Each Holder of Securities participating in the Exchange Offer shall be required
to represent to the Company that at the time of consummation of the Exchange
Offer (i) such Holder is not an "affiliate" of the Company within the meaning
of Rule 405 under the 1933 Act, (ii) the Exchange Securities being acquired by
it pursuant to the Exchange Offer are being obtained in the ordinary course of
the business of the person receiving such Exchange Securities and (iii) that
the Holder has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities. If such Holder is a
Participating Broker-Dealer that will receive Exchange Securities for its own
account as a result of market-making activities or other trading activities, it
will be required to acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities.
(b) In the event that (i) the Company determines
that the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason consummated by April 21, 1998 or (iii) any Holder shall, within 30
days after consummation of the Exchange Offer, notify the Company that such
Holder (x) is prohibited by applicable law or SEC policy from participating in
the Exchange Offer, or (y) may not resell Exchange Securities acquired by it in
the Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, the Company shall use
its best efforts to cause to be filed as soon as practicable after such
determination, date or notice is given to the Company, as the case may be, a
Shelf Registration Statement providing for the sale by the Holders of all of
the Registrable Securities and to have such Shelf Registration Statement
declared effective by the SEC. The Company agrees to use its best efforts to
keep the Shelf Registration Statement continuously effective until the second
anniversary of the Closing Date or such shorter period that will terminate when
all of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement. The Company
further agrees to supplement or amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the 1933 Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder with respect to information
relating to such Holder, and to use its best efforts to cause
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any such amendment to become effective and such Shelf Registration Statement to
become usable as soon as thereafter practicable. The Company agrees to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) or
Section 2(b). Each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Exchange Offer Registration
Statement or the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement
pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless it has
been declared effective by the SEC; provided, however, that, if, after it has
been declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume. As
provided in the Indenture, in the event that the Exchange Offer is not
consummated and, if required by Section 2(b) hereof, a Shelf Registration
Statement is not declared effective by the SEC by April 21, 1998, the interest
rate on the Securities will increase by .5% per annum to 10 1/4% per annum
until the Exchange Offer is consummated or a Shelf Registration Statement is
declared effective. If the Company effects the Exchange Offer, the Company
will be entitled to close the Exchange Offer provided that it has accepted all
Registrable Securities theretofore validly tendered in accordance with the
terms of the Exchange Offer. Registrable Securities not tendered in the
Exchange Offer shall bear interest at the same rate as in effect at the time of
issuance of the Registrable Securities.
(e) Without limiting the remedies available to
the Placement Agents and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2(a) and Section
2(b) hereof may result in material irreparable injury to the Placement Agents
or the Holders for which there is no adequate remedy at law, that it will not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Placement Agents or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
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3. Registration Procedures.
In connection with the obligations of the Company
with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which
form (x) shall be selected by the Company and (y) shall, in
the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof and
(z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith or
incorporated by reference therein, and use its best efforts to
cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments
and post-effective amendments to each Registration Statement
as may be necessary to keep such Registration Statement
effective for the applicable period and cause each Prospectus
to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the
1933 Act; to keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the 1933 Act
that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish
to each Holder of Registrable Securities to which such Shelf
Registration Statement relates, to counsel for the Placement
Agents, to counsel for the Holders and to each Underwriter of
an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale
or other disposition of the Registrable Securities; and the
Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable
law by each of the selling holders of Registrable Securities
and any such Underwriters in connection with the offering and
sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(d) use its best efforts to register or qualify
the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration
Statement shall reasonably request in
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writing by the time the applicable Registration Statement is
declared effective by the SEC, to cooperate with such Holders
in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and do any
and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of
process or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify
each Holder of Registrable Securities, counsel for the Holders
and counsel for the Placement Agents promptly and, if
requested by any such Holder or counsel, confirm such advice
in writing (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has
been filed and becomes effective, (ii) of any request by the
SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to
be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event during the period a
Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not
misleading and (vi) of any determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment and
provide immediate notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish
to each Holder of Registrable Securities, without charge, at
least one conformed copy of each Registration Statement
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and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration,
cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends and enable such
Registrable Securities to be in such denominations (consistent
with the provisions of the Indenture) and registered in such
names as the selling Holders may reasonably request at least
two business days prior to the closing of any sale of
Registrable Securities;
(i) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v)
hereof, use its best efforts to prepare and file with the SEC
a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The Company agrees to notify the Holders to
suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and the Holders hereby agree
to suspend use of the Prospectus until the Company has amended
or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of
such document to the Placement Agents and their counsel (and,
in the case of a Shelf Registration Statement, the Holders and
their counsel) and make such of the representatives of the
Company as shall be reasonably requested by the Placement
Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall not at
any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to
a Registration Statement or a Prospectus or any document which
is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agents and
their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the
Placement Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall
object;
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(k) obtain a CUSIP number for all Exchange
Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute,
and use its best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all
other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make
available for inspection by one representative of the Holders
of the Registrable Securities, any Underwriter participating
in any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner and
subject to execution of customary confidentiality agreements,
all financial and other records, pertinent documents and
properties of the Company, and cause the respective officers,
directors and employees of the Company to supply all
information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration Statement;
(n) in the case of a Shelf Registration, use its
best efforts to cause all Registrable Securities to be listed
on any securities exchange or any automated quotation system
on which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent
such Registrable Securities satisfy applicable listing
requirements;
(o) use its best efforts to cause the Exchange
Securities or Registrable Securities, as the case may be, to
be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under
the 0000 Xxx);
(p) if reasonably requested by any Holder of
Registrable Securities covered by a Registration Statement,
(i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as the
Company has received notification of the matters to be
incorporated in such filing; and
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(q) in the case of a Shelf Registration, enter
into such customary agreements and take all such other actions
in connection therewith (including those requested by the
Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of
such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the
extent possible, make such representations and warranties to
the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when
requested, (ii) use best efforts to obtain opinions of counsel
to the Company (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and
such Underwriters and their respective counsel) addressed to
each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested
in underwritten offerings, (iii) use best efforts to obtain
"cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other
certified public accountant of any subsidiary of the Company,
or of any business acquired by the Company for which financial
statements and financial data are or are required to be
included in the Registration Statement) addressed to each
selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with underwritten offerings, and (iv) deliver such
documents and certificates as may be reasonably requested by
the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and
which are customarily delivered in underwritten offerings, to
evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (i) above
and to evidence compliance with any customary conditions
contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the
Company may require each Holder of Registrable Securities to furnish to the
Company such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing, and the Company may exclude from such
registration the Registrable Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after receiving such
request.
In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the copies
of the
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supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. Each Holder agrees to
indemnify the Company, the Placement Agents, and the other selling Holders and
each of their respective officers and directors who sign the Registration
Statement and each person, if any, who controls any such person for any losses,
claims, damages and liabilities caused by the failure of such Holder to
discontinue disposition of Registrable Securities after receipt of the notice
referred to in the preceding sentence or the failure of such Holder to comply
with applicable prospectus delivery requirements with respect to any Prospectus
(including, but not limited to, any amended or supplemented Prospectus)
provided by the Company for such use. If the Company shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company may give any such notice only twice during any
365-day period and any such suspensions may not exceed 30 days for each
suspension and there may not be more than two suspensions in effect during any
365-day period.
The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange
Offer.
(a) The Staff of the SEC has taken the position
that any broker-dealer that receives Exchange Securities for its own account in
the Exchange Offer in exchange for Securities that were acquired by such
broker-dealer as a result of market-making or other trading activities (a
"Participating Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities.
The Company understands that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be
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delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the 1933 Act in connection with resales of Exchange Securities
for their own accounts, so long as the Prospectus otherwise meets the
requirements of the 1933 Act.
(b) In light of the above, notwithstanding the
other provisions of this Agreement, the Company agrees that the provisions of
this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Placement Agents
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the
Company to deliver and shall not deliver such Prospectus after
such period in connection with the resales contemplated by
this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request to the Company by the Placement Agents
or with the reasonable request in writing to the Company by
one or more broker-dealers who certify to the Placement Agents
and the Company in writing that they anticipate that they will
be Participating Broker-Dealers; and provided further that, in
connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer
Registration, the Company shall be obligated (x) to deal only
with one entity representing the Participating Broker-Dealers,
which shall be the Representative unless it elects not to act
as such representative, (y) to pay the fees and expenses of
only one counsel representing the Participating
Broker-Dealers, which shall be counsel to the Placement Agents
unless such counsel elects not to so act and (z) to cause to
be delivered only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last
Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in
clause (i) above.
(c) The Placement Agents shall have no liability
to the Company or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
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5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold
harmless each Placement Agent, each Holder and each person, if any, who
controls any Placement Agent or any Holder within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control
with, or is controlled by, any Placement Agent or any Holder, from and against
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Placement Agent, any Holder
or any such controlling or affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by 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 caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Placement Agent or any Holder
furnished to the Company in writing by such Placement Agent or any selling
Holder expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, each Placement Agent and
the other selling Holders, and each of their respective directors, officers who
sign the Registration Statement and each Person, if any, who controls the
Company, any Placement Agent and any other selling Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company to each Placement Agent and
each Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to
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either paragraph (a) or paragraph (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Placement Agents and all persons, if any, who control any Placement Agent
within the meaning of either Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx
0000 Xxx, (x) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section and (c) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Holders and all
persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving any Placement Agent and persons who control
such Placement Agent, such firm shall be designated in writing by the
Representative. In such case involving the Holders and such persons who
control Holders, such firm shall be designated in writing by the Majority
Holders. In all other cases, such firm shall be designated by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party for such fees and expenses of counsel in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party,
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unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in
paragraph (a) or paragraph (b) of this Section 4 is unavailable to an
indemnified party or insufficient in respect of any losses, claims, damages or
liabilities, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Holders 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 the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective number of Registrable Securities of such Holder
that were registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required
to indemnify or contribute any amount in excess of the amount by which the
total price at which Registrable Securities were sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 5 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained
in this Section 5 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Placement Agent, any Holder or any person
controlling any Placement Agent or Holder, or by or on behalf of the Company,
its
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officers or directors or any person controlling the Company, (iii) acceptance
of any of the Exchange Securities and (iv) any sale of Registrable Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has
not entered into, and on or after the date of this Agreement will not enter
into, any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consents to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address
given by such Holder to the Company by means of a notice given in accordance
with the provisions of this Section 6(c), which address initially is, with
respect to the Placement Agents, the address set forth for the Representative
in the Placement Agreement; and (ii) if to the Company, initially at the
Company's address set forth in the Placement Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same to
the Trustee, at the address specified in the Indenture.
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(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without
the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Placement Agreement.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such person shall be entitled to receive the benefits
hereof. No Placement Agent (in its capacity as Placement Agent) shall have any
liability or obligation to the Company with respect to any failure by a Holder
to comply with, or any breach by any Holder of, any of the obligations of such
Holder under this Agreement.
(e) Purchases and Sales of Securities. The
Company shall not, and shall use its best efforts to cause its affiliates (as
defined in Rule 405 under the 0000 Xxx) not to, purchase and then resell or
otherwise transfer any Securities, prior to consummation of the Exchange Offer
or a Shelf Registration Statement being declared effective.
(f) Third Party Beneficiary. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Placement Agents, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
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(j) Severability. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
METROCALL, INC.
By /s/ Xxxxxxx X. Xxxxxxx, III
-------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf of
itself and the several Placement
Agents named herein
By: Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ Xxxxxx X. Xxxxxxxxxx III
-----------------------------------
Authorized Signatory
