Exhibit 99.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment, dated as of September 3, 1998 (this "First
Amendment"), to the Agreement and Plan of Merger, dated as of August 18, 1998
(the "Merger Agreement"), by and among Arch Communications Group, Inc. (the
"Buyer"), Farm Team Corp. (the "Merger Subsidiary"), MobileMedia Corporation
(the "Parent") and MobileMedia Communications, Inc. (the "Company"). Terms used
herein with initial capital letters that are not otherwise defined shall have
the meanings ascribed to such terms in the Merger Agreement.
PRELIMINARY STATEMENT
A. The Buyer, the Merger Subsidiary, the Parent and the Company have
entered into the Merger Agreement.
B. The Buyer, the Merger Subsidiary, the Parent and the Company
desire to amend the Merger Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Recital C. Recital C of the Merger Agreement is hereby amended to
delete the reference to "Debtor's First Amended Joint Plan of Reorganization"
and replace such reference with a reference to "Debtor's Second Amended Joint
Plan of Reorganization."
2. Recital E. Recital E of the Merger Agreement is hereby amended to
read in its entirety as follows:
E. In connection with the Merger (as defined in Section 1.1) and as
part of the Amended Plan, the Buyer intends to conduct the Rights
Offering (as defined in Section 4.20), in which it will issue to
holders of certain Allowed Claims transferable Rights to purchase (i)
if a Rights Offering Adjustment (as defined in Schedule II attached
hereto) shall not have occurred, units consisting of (a) shares of
Common Stock, $0.01 par value per share, of the Buyer ("Buyer Common
Stock") or shares of Buyer Class B Common Stock, if applicable, and
(b) warrants to purchase shares of Buyer Common Stock ("Buyer
Warrants"), such Buyer Warrants to be issued pursuant to a warrant
agreement in the form attached hereto as Exhibit B (the "Buyer
Warrant Agreement"), or (ii) if a Rights Offering Adjustment shall
have occurred, shares of Buyer Common Stock or shares of Buyer Class
B Common Stock, if applicable. Contemporaneously with the execution
and delivery of this Agreement, certain holders of Allowed Claims
(the "Standby Purchasers") are making certain commitments in
connection with the Rights Offering (as the same may be amended from
time to time, the "Standby Purchase Commitments"), copies of which
are attached as
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Exhibits G, H, I, J, K and L hereto. In partial consideration for the
Standby Purchase Commitments, the Buyer will issue to the Standby
Purchasers (x) if a Rights Offering Adjustment shall not have
occurred, Buyer Warrants or (y) if a Rights Offering Adjustment shall
have occurred, warrants to purchase shares of Buyer Common Stock
("Buyer Participation Warrants"), such Buyer Participation Warrants
to be issued pursuant to a warrant agreement in the form attached
hereto as Exhibit B-1 (the "Buyer Participation Warrant Agreement"),
as provided in the Standby Purchase Commitments. In addition, in
connection with the Standby Purchase Commitments, the Buyer and the
Standby Purchasers will enter into a registration rights agreement in
the form attached hereto as Exhibit C (as the same may be amended
from time to time, the "Registration Rights Agreement").
3. Recital F. Recital F of the Merger Agreement is hereby amended to
read in its entirety as follows:
F. If a Rights Offering Adjustment shall not have occurred,
immediately following the Merger, the Buyer will issue Buyer Warrants
to the stockholders of the Buyer that were holders of record
immediately prior to such Merger. The Buyer will conduct the
Stockholder Rights Offering (as defined in Section 4.22), in which it
will issue to holders of Buyer Stock (as defined in Section 1.7) as
of a record date to be determined by the Board of Directors of the
Buyer (the "Buyer Record Date"), such holders being referred to
herein as the "Stockholder Rights Holders", non-transferable rights
("Stockholder Rights") (except that, at the Buyer's election, the
Stockholder Rights will transfer with the underlying shares in
respect of which the Stockholder Rights are distributed) to acquire
shares of Buyer Common Stock if a Rights Offering Adjustment shall
have occurred. In connection therewith, if a Rights Offering
Adjustment shall have occurred, immediately following the Merger, the
Buyer will issue to the stockholders of the Buyer one Buyer
Participation Warrant for each Stockholder Right issued to such
Stockholder Rights Holder that was not exercised.
4. Section 1.2. Section 1.2 of the Merger Agreement is here amended
to add the following at the end thereof:
Notwithstanding anything contained herein to the contrary, in no
event will the Closing be earlier than twelve business days after the
Buyer delivers to the Standby Purchasers the written notice required
pursuant to Section 4(c)(i) of the Standby Purchase Commitments.
5. Section 1.3. Section 1.3 of the Merger Agreement is hereby amended
to read in its entirety as follows:
1.3 Actions at the Closing. At the Closing, (a) the Parent and the
Company shall deliver to the Buyer and the Merger Subsidiary the
various certificates, instruments and documents referred to in
Section 5.2, (b) the Buyer and the Merger Subsidiary shall deliver
to the Company the various certificates, instruments and documents
referred to in Section 5.3, (c) the Buyer shall file with the
Secretary of State of the State of Delaware the Buyer Charter
Amendment (as defined in Section 4.12), (d) the Company and the
Merger Subsidiary shall
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immediately thereafter file with the Secretary of State of the State
of Delaware the Certificate of Merger, (e)(i) the Buyer shall deliver
(A) to the Pre-Petition Agent, for the benefit of the Pre-Petition
Lenders, immediately available funds equal to the excess of (x)
$649,000,000 over (y) the Company Tower Sale Proceeds (as defined in
Section 5.2(f)), (B) to the Company immediately available funds when
and as required in amounts sufficient to pay allowed administrative
and priority claims and expenses of the Debtors, whether allowed
prior to or after the Effective Time, as set forth in the Amended
Plan (collectively, the "Plan Cash") and (C) to a bank trust company
or other entity reasonably satisfactory to the Company and the Buyer
appointed by the Buyer to act as the exchange agent (the "Exchange
Agent") pursuant to Section 1.6(a), certificates representing an
aggregate number of shares of Buyer Common Stock determined in
accordance with the pricing mechanism set forth in Schedule II
attached hereto (the "Plan Shares") to be distributed as contemplated
by Section 1.6(b), (ii) the Buyer shall issue the Buyer Common Stock
(and Buyer Class B Common Stock, if applicable) and, if a Rights
Offering Adjustment shall not have occurred, (A) Buyer Warrants
purchased through the exercise of Rights and (B) Buyer Warrants
purchased by or otherwise issued to the Standby Purchasers in
connection with the Standby Purchase Commitments, and (iii) if a
Rights Offering Adjustment shall have occurred, the Buyer shall issue
the Buyer Common Stock purchased through the exercise of the
Stockholder Rights and, to the extent such Stockholder Rights are not
exercised, the Buyer shall issue the Buyer Participation Warrants.
6. Section 1.7. Section 1.7 of the Merger Agreement is hereby amended
to read in its entirety as follows:
1.7 Distribution to Holders of Buyer Common Stock.
(a) If a Rights Offering Adjustment shall not have occurred, the
Buyer shall, as soon as practicable after receipt of the Confirmation
Order, declare and make, subject to and effective immediately after
the occurrence of the Effective Time, a distribution of Buyer
Warrants on the shares of Buyer Common Stock and the Buyer's Series C
Convertible Preferred Stock, $.01 par value per share (the "Buyer
Preferred Stock" and, together with the Buyer Common Stock, the
"Buyer Stock"), outstanding immediately prior to the Effective Time .
The Buyer Warrants to be distributed pursuant to this Section 1.7(a)
will entitle the holders thereof to purchase, in the aggregate, a
number of shares of Buyer Common Stock equal to 7.00% of the
aggregate number of shares of issued and outstanding Buyer Common
Stock and, if applicable, Buyer Class B Common Stock on the date the
Initial Buyer Market Price is determined in accordance with Schedule
II attached hereto, computed on a Fully Diluted Basis after giving
effect to the Amended Plan as if the Effective Date had occurred on
such date and assuming 21,067,110 shares of Buyer Common Stock were
issued and outstanding immediately prior thereto.
(b) The Buyer shall conduct the Stockholder Rights Offering in
accordance with Section 4.22, and, if a Rights Offering Adjustment
shall have occurred, the Buyer shall, as soon as practicable after
the occurrence of the Effective Time, declare and make a distribution
to
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each Stockholder Rights Holder of one Buyer Participation Warrant for
each Stockholder Right of such Stockholder Rights Holder that shall
not have been exercised.
(c) Notwithstanding the foregoing, no fractional Buyer Warrants or
Buyer Participation Warrants, as the case may be, shall be issued in
the distribution of Buyer Warrants or Buyer Participation Warrants to
be made pursuant to this Section 1.7 (the "Buyer Distribution"); in
lieu thereof, fractional Buyer Warrants or Buyer Participation
Warrants, as the case may be, that would otherwise be issued in the
Buyer Distribution will be rounded up to the nearest whole number of
Buyer Warrants or Buyer Participation Warrants, as the case may be.
7. Section 3.1(b). Section 3.1(b) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(b) Each of the Buyer and the Merger Subsidiary has all requisite
power and authority to execute and deliver this Agreement. The
execution and delivery of this Agreement by the Buyer and the Merger
Subsidiary and, subject to the approval of the Buyer Charter
Amendment (as defined in Section 4.12) and the Buyer Share Issuance
(as defined below in this Section 3.1(b)) by the stockholders of the
Buyer, the performance of this Agreement and the consummation of the
transactions contemplated hereby by the Buyer and the Merger
Subsidiary have been duly and validly authorized by all necessary
corporate action on the part of the Buyer and the Merger Subsidiary.
This Agreement has been duly and validly executed and delivered by
the Buyer and the Merger Subsidiary and constitutes a valid and
binding obligation of the Buyer and the Merger Subsidiary,
enforceable against the Buyer and the Merger Subsidiary in accordance
with its terms. For purposes of this Agreement, "Buyer Share
Issuance" means the issuance by the Buyer of shares of its capital
stock as contemplated by this Agreement and the Amended Plan,
including (i) the issuance of the Plan Shares as contemplated by the
Merger Agreement and the Amended Plan, (ii) the issuance of shares of
Buyer Common Stock and, if applicable, shares of Class B Common
Stock, par value $0.01 per share, of the Buyer ("Buyer Class B Common
Stock") having the terms specified in the Buyer Charter Amendment
upon exercise of Rights issued pursuant to the Rights Offering or
issued to the Standby Purchasers (or their assignees or persons in
substitution therefor) pursuant to the Standby Purchase Commitments
in connection with the Rights Offering and, if a Rights Offering
Adjustment shall have occurred, the issuance of shares of Buyer
Common Stock upon exercise of Stockholder Rights issued pursuant to
the Stockholder Rights Offering, and (iii) (A) if a Rights Offering
Adjustment shall not have occurred, the issuance of the Buyer
Warrants by the Buyer (x) pursuant to the Rights Offering, (y) to the
Standby Purchasers in connection with the Rights Offering, and (z)
pursuant to the Buyer Distribution, and the issuance of shares of
Buyer Common Stock upon exercise of any of the foregoing Buyer
Warrants, or (B) if a Rights Offering Adjustment shall have occurred,
the issuance of the Buyer Participation Warrants by the Buyer (x) to
the Standby Purchasers in connection with the Rights Offering and (y)
pursuant to the Buyer Distribution, and the issuance of shares of
Buyer Common Stock upon exercise of any of the foregoing Buyer
Participation Warrants.
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8. Section 3.2(e). Section 3.2(e) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(e) (i) The Plan Shares to be issued and distributed as contemplated
by Sections 1.3(e) and 1.6 of this Agreement, (ii) the shares of
Buyer Common Stock to be issued and distributed pursuant to the
Stockholder Rights Offering, (iii) the shares of Buyer Common Stock
and the shares of Buyer Class B Common Stock, if applicable, to be
issued and delivered pursuant to the Rights Offering (as defined in
Section 4.20(a)) or as contemplated by the Standby Purchase
Commitments, (iv) the shares of Buyer Common Stock to be issued and
delivered upon conversion of shares of Buyer Class B Common Stock, if
applicable, when so converted in accordance with the Buyer Charter
Amendment (as defined in Section 4.12), (v) either (A), if a Rights
Offering Adjustment shall not have occurred, the Buyer Warrants to be
issued and distributed pursuant to the Rights Offering or as
otherwise contemplated by the Standby Purchase Commitments or (B) if
a Rights Offering Adjustment shall have occurred, the Buyer
Participation Warrants to be issued and delivered as contemplated by
the Standby Purchase Commitments, in either case when so issued and
distributed or delivered, as the case may be, and (vi) either (A), if
a Rights Offering Adjustment shall not have occurred, the shares of
Buyer Common Stock to be issued and delivered upon exercise of Buyer
Warrants, when issued, paid for and delivered as provided in the
Buyer Warrant Agreement or (B) if a Rights Offering Adjustment shall
have occurred, the shares of Buyer Common Stock to be issued and
delivered upon exercise of Buyer Participation Warrants, when issued,
paid for and delivered as provided in the Buyer Participation Warrant
Agreement, will all be duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights.
9. Section 3.23. Section 3.23 of the Merger Agreement is hereby
amended to read in its entirety as follows:
3.23 Rights Agreement; Section 203.
(a) The Buyer has executed amendments dated as of August 18, 1998 and
September 3, 1998 to its Rights Agreement dated as of October 13,
1995 in the forms attached hereto as Exhibit D, and Exhibit D-1,
respectively.
(b) The Board of Directors of the Buyer has approved this Agreement,
the Merger and the Amended Plan together with the transactions
contemplated hereby and thereby (including without limitation the
acquisition by the Standby Purchasers of Buyer Warrants or Buyer
Participation Warrants, as the case may be, and Buyer Common Stock or
Buyer Class B Common Stock, if applicable, pursuant to this
Agreement, the Amended Plan and the Standby Purchase Commitments, or
of Buyer Common Stock pursuant to the Buyer Warrants or Buyer
Participation Warrants, as the case may be), including for purposes
of Section 203 of the DGCL.
10. Section 4.9. Section 4.9 of the Merger Agreement is hereby
amended to read in its entirety as follows:
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4.9 Nasdaq National Market Quotation. The Buyer shall use its best
efforts to have the shares of Buyer Common Stock (including all such
shares issuable upon conversion of the Buyer Class B Common Stock and
upon exercise of the Buyer Warrants or Buyer Participation Warrants,
as the case may be) and Buyer Warrants or Buyer Participation
Warrants, as the case may be, to be issued as contemplated by the
Amended Plan and this Agreement approved for quotation on the Nasdaq
National Market prior to the Closing.
11. Section 4.13. Section 4.13 of the Merger Agreement is hereby
amended to read in its entirety as follows:
4.13 Proxy Statement, Disclosure Statement, Etc.
(a) The Buyer shall promptly after execution of this Agreement
prepare and file with the SEC under the Exchange Act, and shall use
its best efforts to have declared effective by the SEC as soon as
practicable thereafter and shall thereafter promptly mail to its
stockholders, a proxy statement/prospectus for the Meeting and to
effect the Stockholder Rights Offering (the "Proxy Statement"). The
Buyer shall also take any action required to be taken under state
blue sky laws or other securities laws in connection with the
Stockholder Rights Offering. The Proxy Statement shall be mailed to
stockholders of the Buyer at least 20 business days in advance of the
date of the Meeting. The Company shall furnish the Buyer with all
information (including, without limitation, its Audited Financial
Statements and the Unaudited Quarterly Financial Statements, pro
forma financial information and projections included in the
Disclosure Statement) and shall take such other action (including
obtaining any necessary consents from the accountants) as the Buyer
may reasonably request in connection with the Proxy Statement. The
Buyer shall consult with the Company and its counsel in connection
with, and shall permit the Company and its counsel to participate in,
the preparation of the Proxy Statement and any amendments or
supplements thereto.
(b) The Buyer shall promptly notify the Company of the receipt of the
comments of the SEC and of any requests by the SEC for amendments or
supplements to the Proxy Statement or for additional information, and
shall promptly supply the Debtors with copies of all correspondence
between it (or its representatives) and the SEC (or its staff) with
respect thereto, and shall permit counsel for the Company to
participate in any telephone conferences or meetings with the staff
of the SEC. If, at any time prior to the Meeting, any event should
occur relating to or affecting a Party or its officers or directors,
which event should be described in an amendment or supplement to the
Proxy Statement, such Party shall promptly inform the other Party and
shall cooperate in promptly preparing, filing and clearing with the
SEC and, if required by applicable securities law, mailing to the
Buyer's stockholders, as the case may be, such amendment or
supplement.
(c) The Buyer shall furnish the Company with all information
(including historical and pro forma financial information and
projections of the Buyer) and shall take such other action as the
Company may reasonably request in connection with the Disclosure
Statement. The Company shall consult with the Buyer and its counsel
in connection with, and shall
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permit the Buyer and its counsel to participate in, the preparation
and Bankruptcy Court approval process of the Disclosure Statement and
any amendments or supplements thereto.
12. Section 4.19. Section 4.19 of the Merger Agreement is hereby
amended to read in its entirety as follows:
4.19 Rights Agreement. The Buyer shall not (i) amend the Rights
Agreement other than as contemplated by Section 3.23 or (ii) take any
action with respect to, or make any determination under, the Rights
Agreement (including a redemption of the Preferred Rights) with the
purpose of facilitating a Buyer Acquisition Proposal.
13. Section 4.20(a). Section 4.20(a) of the Merger Agreement is
hereby amended to read in its entirety as follows:
4.20 Buyer Rights Offering Registration Statement. (a) As specified
in the Amended Plan, the Buyer will issue (the "Rights Offering") to
the holders of certain Allowed Claims as specified in the Amended
Plan Rights to purchase, for an aggregate consideration of $217
million, shares of Buyer Common Stock, Buyer Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, Buyer Warrants. The Rights Offering will be made
substantially on the terms set forth in Schedule III hereto.
14. New Section 4.22. The Merger Agreement is hereby amended to add
the following immediately following Section 4.21 thereof:
4.22 Stockholder Rights Offering. If a Rights Offering Adjustment
shall have occurred, the Buyer will offer (the "Stockholder Rights
Offering") to the Stockholder Rights Holders Stockholder Rights to
purchase for cash shares of Buyer Common Stock. The Stockholder
Rights Offering will be made substantially on the terms set forth in
Schedule IV hereto.
15. Section 5.1(f). Section 5.1(f) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(f) each of the Registration Statement and the Proxy Statement shall
have been declared effective and no stop order with respect to either
of the Registration Statement or the Proxy Statement shall be in
effect;
16. Section 5.1(g). Section 5.1(g) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(g) the shares of Buyer Common Stock (including all such shares
issuable upon conversion of the Buyer Class B Common Stock and the
Buyer Warrants or Buyer Participation Warrants, as the case may be)
to be issued as contemplated by the Amended Plan and this Agreement
shall have been approved for quotation on the Nasdaq National Market.
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17. Section 5.2(e). Section 5.2(e) of the Merger Agreement is hereby
amended to read in its entirety as follows:
(e) after each of the Registration Statement and the Proxy Statement
has been declared effective, each of the Rights Offering and the
Stockholder Rights Offering shall have expired and the Buyer shall
have received aggregate proceeds therefrom (and/or from the closings
contemplated by the Standby Purchase Commitments) of at least $217.0
million; and
18. Section 6.1(f). Section 6.1(f) of the Merger Agreement is hereby
amended to add the following at the end thereof:
provided, however, that such termination shall not be
effective unless such notice is delivered on or before
October 4, 1998;
19. Amended Exhibit A. Exhibit A to the Merger Agreement is hereby
amended to read in its entirety as Exhibit A hereto.
20. Amended Exhibit B. Exhibit B to the Merger Agreement is hereby
amended to read in its entirety as Exhibit B hereto.
21. New Exhibit B-1. Exhibit B-1 hereto is hereby added as Exhibit
B-1 to the Merger Agreement.
22. New Exhibit D-1. Exhibit D-1 hereto is hereby added as Exhibit
D-1 to the Merger Agreement.
23. Amended Exhibit F. Exhibit F to the Merger Agreement is hereby
amended to read in its entirety as Exhibit F hereto.
24. Amended Schedule II. Schedule II to the Merger Agreement is
hereby amended to read in its entirety as Schedule II hereto.
25. Amended Schedule III. Schedule III to the Merger Agreement is
hereby amended to read in it entirety as Schedule III hereto.
26. New Schedule IV. Schedule IV hereto is hereby added as Schedule
IV to the Merger Agreement.
27. Continuation of Merger Agreement. Except as specifically amended
hereby, the Merger Agreement shall continue in full force and effect and is
hereby ratified and confirmed in all respects.
28. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Delaware.
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29. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of
the date first above written.
ARCH COMMUNICATIONS GROUP, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
FARM TEAM CORP.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
SUBJECT TO THE RECEIPT OF THE CONFIRMATION
ORDER FROM THE BANKRUPTCY COURT WITH RESPECT
TO THE AMENDED PLAN:
MOBILEMEDIA CORPORATION
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
MOBILEMEDIA COMMUNICATIONS,
INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
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CONSENT
Each of the undersigned hereby acknowledges that this
Amendment (including the amendments to the exhibits to the Merger Agreement
effected thereby) is in form and substance reasonably satisfactory to it.
Northwestern Mutual Series Fund, Inc.
for the High Yield Bond Portfolio
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President
The Northwestern Mutual Life
Insurance Company
for its Group Annuity Separate Account
By: Northwestern Investment
Management Company
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Managing Director
The Northwestern Mutual Life
Insurance Company
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Authorized Representative
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X.X. Xxxx Asset Management Co., L.L.C.,
as agent for its separate accounts and
affiliates
By:
-------------------------------------
Name: Xxxxx X. Xxxxx, Esq.
Its: Attorney-in-Fact
Whippoorwill Associates, Inc., as general
partner of and/or as agent for each
account, fund or entity listed in its
Standby Purchase Commitment
By:
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Its: Managing Director
Credit Suisse First Boston Corporation
By:
-------------------------------------
Name: Xxxx Xxxxxxx
Its: Director
September 3, 0000
-00-
XX XXX XXXXXX XXXXXX BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
MobileMedia Communications, ) Case No. 97-174 (PJW)
Inc., et al., )
) (Jointly Administered)
Debtors )
DEBTORS' SECOND AMENDED JOINT PLAN OF REORGANIZATION
Dated: September 4, 1998
J. Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxx X. Xxxxx
XXXXXX & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Xxxxx X. Xxxxxx, Xx. (No. 2202)
Xxxx X. Xxxxx (No. 2925)
YOUNG XXXXXXX STARGATT &
XXXXXX, LLP
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Co-Counsel to Debtors and
Debtors-in-Possession
MobileMedia Corporation, a Delaware corporation
("MobileMedia"), MobileMedia Communications, Inc., a Delaware corporation
("Communications"), MobileMedia Communications, Inc. (California), a California
corporation, MobileMedia DP Properties, Inc., a Delaware corporation,
MobileMedia PCS, Inc., a Delaware corporation, Dial Page Southeast, Inc., a
Delaware corporation, Radio Call Company of Va., Inc., a Virginia corporation,
MobileMedia Paging, Inc., a Delaware corporation, Mobile Communications
Corporation of America, a Mississippi corporation, MobileComm of the Southeast,
Inc., a Delaware corporation, MobileComm of the Northeast, Inc., a Delaware
corporation, MobileComm Nationwide Operations, Inc., a Delaware corporation,
MobileComm of Tennessee, Inc., a Tennessee corporation, MobileComm of the
Southeast Private Carrier Operations, Inc., a Georgia corporation, MobileComm of
the Southwest, Inc., a Texas corporation, MobileComm of Florida, Inc., a Florida
corporation, MobileComm of the Midsouth, Inc., a Missouri corporation, FWS
Radio, Inc., a Texas corporation, and MobileComm of the West, Inc., a California
corporation, each a debtor and debtor-in-possession herein (collectively, the
"Debtors"), propose the following First Amended Joint Plan of Reorganization
(the "Plan").
INTRODUCTION
This Plan encompasses a reorganization of the Debtors pursuant
to which Communications will merge with and into Farm Team Corp., a Delaware
corporation ("Merger Subsidiary") and a subsidiary of Arch Communications Group,
Inc. ("Arch"), with Merger Subsidiary being the surviving company. The Debtors'
creditors will receive cash or equity securities of Arch. There will be no
recovery for the Debtors' equity security holders.
Reference is made to the Disclosure Statement accompanying
this Plan, including the exhibits thereto, for a discussion of the Debtors' and
Arch's history, business, results of operations and properties, and for a
summary and analysis of this Plan. All creditors are encouraged to consult the
Disclosure Statement and to read this Plan carefully before voting to accept or
reject this Plan.
NO SOLICITATION MATERIALS, OTHER THAN THE DISCLOSURE STATEMENT
AND RELATED MATERIALS TRANSMITTED THEREWITH AND APPROVED BY THE BANKRUPTCY
COURT, HAVE BEEN AUTHORIZED BY THE BANKRUPTCY COURT FOR USE IN SOLICITING
ACCEPTANCES OR REJECTIONS OF THIS PLAN.
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions.
In addition to such other terms as are defined in other
Sections of this Plan, the following terms (which appear in this Plan as
capitalized terms) shall have the meanings set forth
below. A term used in this Plan and not defined in this Plan but that is defined
in the Code has the meaning set forth in the Code.
"9 3/8% Note Indenture" means the Indenture dated as of
November 13, 1995, between Communications, as Issuer, and State Street Bank and
Trust Company, as Trustee.
"9 3/8% Notes" means the Senior Subordinated Notes due
November 1, 2007, issued pursuant to the 9 3/8% Note Indenture.
"10 1/2% Note Indenture" means the Indenture dated as of
December 1, 1993, between Communications, as Issuer, and First Trust USA (as
successor to BankAmerica National Trust Company), as Trustee, as amended.
"10 1/2% Notes" means the 10 1/2% Senior Subordinated Deferred
Coupon Notes due December 1, 2003, issued pursuant to the 10 1/2% Note
Indenture.
"1995 Credit Agreement" means the Credit Agreement dated as of
December 4, 1995, as amended, among Communications, the Pre-Petition Lenders and
the Pre-Petition Agent.
"Administrative Claim" means a Claim to the extent that it is
of the kind described in section 503(b) of the Code and is entitled to priority
under section 507(a)(1) of the Code.
"Allowed" means as to any Claim (whether an Administrative
Claim, Priority Claim, Priority Tax Claim, Secured Claim or Unsecured Claim),
the extent to which such Claim:
(a) (i) was timely filed or listed in the Schedules
and not listed as disputed, contingent or
unliquidated as to amount; and
(ii) the Debtors, the Reorganized Debtors or any
other party in interest entitled to do so has
not and does not file an objection to such
Claim within the time period set forth for
objecting in Section 4.4;
(b) is allowed by a Final Order of the Bankruptcy Court;
or
(c) is allowed by this Plan.
"Arch Capital Shares" means, collectively, the Arch Common
Shares and the Arch Class B Common Shares.
"Arch Class B Common Shares" means the shares of Class B
Common Stock of Arch, par value $0.01 per share, to be authorized and issued as
and when contemplated by the Merger Agreement.
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"Arch Common Shares" means the shares of Common Stock of Arch,
par value $0.01 per share, which are issued and outstanding plus additional
shares which will be authorized and issued as and when contemplated by the
Merger Agreement.
"Arch Participation Warrants" means, if a Rights Offering
Adjustment shall have occurred, warrants for the purchase of Arch Common Shares,
which warrants will be issued pursuant to a Warrant Agreement governing their
issuance and exercise that will be in the form set forth in Exhibit B-1 to the
Merger Agreement.
"Arch Series C Convertible Preferred Shares" means the shares
of Series C Convertible Preferred Stock of Arch, par value $0.01 per share.
"Arch Stockholder Rights" means non-transferable rights
(except that, at Arch's election, the rights will transfer with the underlying
shares in respect of which the rights are distributed) for the purchase of Arch
Common Shares.
"Arch Stockholder Rights Offering" means the issuance of Arch
Stockholder Rights to the holders of Arch Common Stock on a date to be
determined by the Board of Directors of Arch, as more fully described in
Schedule IV to the Merger Agreement.
"Arch Stockholder Rights Offering Commencement Date" has the
meaning set forth in Schedule IV to the Merger Agreement.
"Arch Warrants" means warrants for the purchase of Arch Common
Shares, which warrants will be issued pursuant to a Warrant Agreement governing
their issuance and exercise that will be in the form set forth in Exhibit B to
the Merger Agreement.
"Ballot" means the ballot for voting to accept or reject this
Plan distributed by the Debtors to all holders of impaired Claims entitled to
vote on this Plan.
"Bankruptcy Court" means the United States Bankruptcy Court
for the District of Delaware in which the Cases were filed on January 30, 1997,
or any other court with jurisdiction over the Cases.
"Bankruptcy Rules" means the Federal Rules of Bankruptcy
Procedure, as amended from time to time to the extent applicable to the Cases.
"Benefit Plan Indemnification Obligations" means
Indemnification Obligations with respect to any officer or employee serving as a
fiduciary of any employee benefit plan or program of the Debtors, pursuant to
charter, by law, contract or applicable state law for any actions taken or not
taken in the discharge of such officer's or employee's duties as a fiduciary of
such employee benefit plans or programs.
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"Business Day" means any day other than a Saturday, Sunday or
day on which commercial banks in the city of New York, New York or the States of
New Jersey or Delaware are authorized or required to close.
"Capped Administrative Claims" means the Debtors' good faith
estimate of the sum of (i) Priority Tax Claims, (ii) Administrative Claims for
(x) bonuses payable to employees and professionals on or as a result of the
Effective Date, (y) amounts necessary to cure any defaults in executory
contracts or unexpired leases assumed pursuant to this Plan as required by
section 365(b) of the Code and (z) any accrued and unpaid fees and expenses of
professionals retained by the Debtors or the Committee pursuant to orders of the
Bankruptcy Court, and (iii) Claims for (x) the Allowed Class 4 Claims described
in Section 2.6(B)(ii), (iii) and (iv), (y) the Allowed Class 5 Claims described
in Section 2.7(B), and (z) Allowed Class 6 Claims of the indenture trustees
under the Subordinated Indentures described in Section 2.8(C)(3), in each case
(other than those Claims in clause (iii)(z) hereof which shall be payable until
such professionals no longer provide services to their respective constituencies
on account of the Cases), accrued and unpaid or payable as of the Effective
Date, which estimate shall be in reasonable detail (which in the case of
professional fees, shall be in substantially the same form as would be submitted
to the Bankruptcy Court) and shall be delivered to Arch (with a copy to the
Committee) twenty days prior to the Effective Date. If no objection is made by
Arch to the Debtors' estimate within ten days after receipt thereof, the
estimate shall be deemed to be the amount of Capped Administrative Claims for
purposes of Section 2.1(D). If Arch delivers to the Debtors (with a copy to the
Committee) a written objection to the Debtors' estimate within ten days after
receipt of such estimate, and the Debtors and Arch are unable to resolve such
objection, it shall be submitted to the Bankruptcy Court to be determined on or
as soon as practicable after the Effective Date.
"Cash Equivalent" means, with respect to any Right, an amount
equal to the value of such Right as determined based on the actual proceeds
received from the sale of Rights from the Rights Reserve pursuant to Section
4.1(B)(5) (or, if the Rights Reserve is then fully depleted, the fair value
thereof as of the time such sale would have occurred based on the market price
for such Right or, if no such price is available, as determined by the Debtors,
Arch and the Committee in good faith or determined by the Bankruptcy Court if no
agreement can be reached).
"Cases" means the reorganization proceedings of the Debtors
under chapter 11 of the Code, jointly administered as Case No. 97-174 (PJW).
"Causes of Action" means all claims and causes of action now
owned or hereafter acquired by the Debtors, whether arising under any contract
or under the Code or other federal or state law, including, without limitation,
any causes of action arising under sections 544, 545, 547, 548, 549, 550, 551,
553(b) or other sections of the Code.
"Claim" means "claim" as defined in section 101(5) of the
Code, as supplemented by section 102(2) of the Code, and shall, in each case,
mean a Claim against any Debtor (whether or not so designated).
"Class" means each class of Claims or Claims and Interests
created under this Plan.
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"Class 6 Adjusted Pro Rata Share" means, as to any Allowed
Class 6 Claim, as of the date that is five Business Days prior to the Final
Distribution Date, a fraction (i) the numerator of which is the amount of such
Allowed Class 6 Claim and (ii) the denominator of which is the aggregate amount
of all Allowed Class 6 Claims as of such date.
"Class 6 Pro Rata Share" means, as to any Allowed Claim in
Class 6 on the Effective Date or such later date (prior to the Final
Distribution Date) as such Claim becomes Allowed, a fraction (i) the numerator
of which is the amount of such Allowed Claim and (ii) the denominator of which
is the sum of (x) the Effective Date Disputed Claims, (y) the Effective Date
Allowed Claims and (z) an estimate of the aggregate amount of Claims arising
from the rejection of executory contracts and unexpired leases pursuant to
Section 3.1 that are anticipated to become Allowed Claims, such estimate to be
mutually agreed upon by the Debtors, the Committee and Arch in good faith or
determined by the Bankruptcy Court if no such agreement can be reached.
"Code" means the United States Bankruptcy Code, 11 U.S.C.
xx.xx. 101 et seq., as amended from time to time to the extent applicable to the
Cases.
"Committee" means the Official Committee of Unsecured
Creditors appointed by the United States Trustee for the District of Delaware on
February 10, 1997.
"Common Stock" means, collectively, (i) the Class A common
stock of MobileMedia, par value $.001, issued and outstanding immediately prior
to the Effective Date, (ii) the Class B common stock of MobileMedia, par value
$.001, issued and outstanding immediately prior to the Effective Date and (iii)
all options, warrants and other rights to purchase the Class A common stock or
the Class B common stock of MobileMedia.
"Common Stock Claim" means any Claim with respect to the
Common Stock of the kind described in section 510(b) of the Code, including,
without limitation, any such Claim asserted in or by the parties to the
Securities Actions and any Claim by an officer, director or underwriter for
contribution, reimbursement or indemnification related thereto.
"Confirmation" means "confirmation" as used in section 1129 of
the Code.
"Confirmation Date" means the date on which the Confirmation
Order is entered by the Bankruptcy Court.
"Confirmation Hearing" means the hearing at which the
Bankruptcy Court considers Confirmation of this Plan.
"Confirmation Order" means an order of the Bankruptcy Court
confirming this Plan, which order shall be reasonably satisfactory to Arch and,
as to the provisions relating to the treatment of Allowed Class 4 Claims, the
Pre-Petition Agent.
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"Creditor" means "creditor" as defined in section 101(10) of
the Code and shall mean a creditor of any Debtor.
"Creditor Stock Pool" means a number of newly-issued Arch
Common Shares determined in accordance with Schedule II to the Merger Agreement,
as such number of shares constituting the Creditor Stock Pool may be adjusted
pursuant to Section 2.1(D).
"Customer Refund Claim" means a Claim by a customer or
subscriber of any of the Debtors for refund of amounts improperly paid or
billed, or for the return of a deposit.
"Dial Page Indenture" means the Indenture dated as of February
1, 1993, between Dial Page, Inc., a Delaware corporation, as Issuer, and the
Dial Page Indenture Trustee, as amended.
"Dial Page Indenture Trustee" means Norwest Bank Minnesota,
N.A. (as successor to First Union Bank of South Carolina), as Trustee under the
Dial Page Indenture.
"Dial Page Notes" means the 12 1/4% Senior Notes due 2000,
issued pursuant to the Dial Page Indenture.
"Diluted Basis" means after giving effect to (i) the issuance
and distribution pursuant to this Plan of the Arch Capital Shares (including the
Arch Capital Shares issued upon exercise of the Rights issued pursuant to the
Rights Offering but excluding Arch Capital Shares issued or issuable upon
exercise of the Arch Warrants or Arch Participation Warrants) and (ii) the
assumed issuance of all Arch Common Shares issuable upon conversion of all
convertible preferred stock (including the Arch Series C Convertible Preferred
Shares) and convertible debt securities of Arch outstanding as of the date the
"Buyer Market Price" is determined in accordance with Schedule II to the Merger
Agreement.
"DIP Agent" means The Chase Manhattan Bank, in its capacity as
agent for the DIP Lenders under the DIP Credit Agreement.
"DIP Approval Orders" means, collectively, (i) the Final Order
(I) Authorizing (A) Secured Post-Petition Financing On A Super Priority Basis
Pursuant To 11 U.S.C. ss. 364, (B) Use Of Cash Collateral Pursuant to 11 U.S.C.
ss. 363 and (C) Grant of Adequate Protection Pursuant To 11 U.S.C. xx.xx. 363
And 364, dated February 19, 1997, (ii) Order (I) Authorizing Extension of (A)
Secured Post-Petition Financing On A Super Priority Basis Pursuant To 11 U.S.C.
ss. 364, (B) Use Of Cash Collateral Pursuant To 11 U.S.C. ss. 363 And (C) Grant
Of Adequate Protection Pursuant To 11 U.S.C. xx.xx. 363 And 364 And (II)
Scheduling A Final Hearing Pursuant To Bankruptcy Rule 4001(c), dated January
27, 1998 and (iii) Order (I) Authorizing Extension of (A) Secured Post-Petition
Financing On A Super Priority Basis Pursuant To 11 U.S.C. ss. 364, (B) Use Of
Cash Collateral Pursuant To 11 U.S.C. ss. 363 And (C) Grant Of Adequate
Protection Pursuant To 11 U.S.C. xx.xx. 363 And 364 And (II) Scheduling A Final
Hearing Pursuant To Bankruptcy Rule 4001(c), dated July 28, 1998.
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"DIP Credit Agreement" means the Revolving Credit and
Guarantee Agreement dated as of January 30, 1997, as amended, among
Communications, as Borrower, MobileMedia, as Parent and Guarantor, each of the
direct and indirect subsidiaries of Communications designated as Guarantor in
Schedule 3.5 thereto, as Guarantors, the DIP Agent and the DIP Lenders.
"DIP Lenders" means those financial institutions from time to
time party to the DIP Credit Agreement as lenders.
"Director Indemnification Obligations" means Indemnification
Obligations with respect to any present or former director of any of the
Debtors.
"Disclosure Statement" means the Disclosure Statement
respecting this Plan approved by order of the Bankruptcy Court, and all
supplements and exhibits thereto.
"Disputed Claim" means a Claim against any of the Debtors to
the extent that such Claim is not Allowed.
"Effective Date" means the date on which this Plan becomes
effective which date shall be ten Business Days after all the conditions to the
Effective Date set forth in Section 5.1 have first been satisfied or waived, or
such earlier date (but not less than seven Business Days after such conditions
have first been satisfied or waived) as the Debtors, Arch, the Pre-Petition
Agent, the DIP Agent and the Committee shall agree.
"Effective Date Allowed Claims" means those Class 6 Claims
that have been Allowed by order of the Bankruptcy Court prior to the Effective
Date or that are Allowed pursuant to this Plan, as set forth in a schedule
delivered by the Debtors to the Exchange Agent and Arch two Business Days prior
to the Effective Date, which schedule, absent manifest error, shall be
conclusive for the purposes of calculating Class 6 Pro Rata Share and Class 6
Adjusted Pro Rata Share.
"Effective Date Disputed Claims" means, on and as of the
Effective Date, any Class 6 Claim that is a Disputed Claim on and as of such
date, in the full amount set forth in any timely filed proof of claim or listed
by the Debtors in the Schedules, as set forth in a schedule delivered by the
Debtors to the Exchange Agent and Arch two Business Days prior to the Effective
Date, which schedule, absent manifest error, shall be conclusive for purposes of
calculating Class 6 Pro Rata Share and Class 6 Adjusted Pro Rata Share.
"Estate Representative" has the meaning given such term in
Section 4.2(C)(5).
"Exchange Agent" means a bank trust company or other entity
reasonably satisfactory to MobileMedia and the Committee, appointed by Arch to
act as the exchange agent for making distributions to the holders of Allowed
Class 6 Claims.
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"Excluded Indemnification Obligations" means Indemnification
Obligations with respect to (i) any present or former officer of the Debtors
considered as of the Effective Date by the FCC to be an alleged wrongdoer for
purposes of the FCC Proceeding, (ii) any present or former officer of the
Debtors now or hereafter named as a defendant in the Securities Actions, as to
claims arising out of the matters alleged in the Securities Actions, (iii) any
present or former officer of the Debtors named as a defendant in any action
initiated after the date hereof based upon similar factual allegations, or
alleging similar causes of action, to the Securities Actions, as to claims
arising out of the matters alleged therein, (iv) any officer or employee of the
Debtors that is not an officer or employee as of the Effective Date, (v) present
or former professionals or advisors of the Debtors, including, without
limitation, accountants, auditors, financial consultants, underwriters or
attorneys, other than Indemnification Obligations arising out of post-petition
agreements approved by the Bankruptcy Court, and (vi) any Indemnification
Obligation of the kind described in section 510(b) of the Code.
"FCC" means the Federal Communications Commission or any
governmental authority succeeding to the rights and powers thereof.
"FCC Proceeding" means the hearing in WT Docket No. 97-115, In
the Matter of MobileMedia Corporation, et al.
"Final Distribution Date" means the tenth Business Day after
the day on which no Class 6 Claim remains a Disputed Claim.
"Final Order" means, as to any court, administrative agency or
other tribunal, an order or judgment of such tribunal as entered on its docket
as to which the time to appeal or petition for certiorari has expired and as to
which no appeal or petition for certiorari is pending or, if an appeal or
petition for certiorari has been timely filed or taken, the order or judgment of
the tribunal has been affirmed (or such appeal or petition has been dismissed as
moot) by the highest court (or other tribunal having appellate jurisdiction over
the order or judgment) to which the order was appealed or the petition for
certiorari has been denied, and the time to take any further appeal or to seek
further certiorari has expired.
"Fully Diluted Basis" means after giving effect to (i) the
issuance and distribution pursuant to this Plan of the Arch Capital Shares
(including the Arch Capital Shares issued upon exercise of the Rights issued
pursuant to the Rights Offering), (ii) the assumed issuance of all Arch Common
Shares issuable upon conversion of all convertible preferred stock (including
the Arch Series C Convertible Preferred Shares) and convertible debt securities
of Arch outstanding as of the date the "Buyer Market Price" is determined in
accordance with Schedule II to the Merger Agreement, and (iii) the assumed
issuance of all Arch Common Shares issuable upon the exercise of the Arch
Warrants or the Arch Participation Warrants, as the case may be.
"Indemnification Obligations" means the obligation of any of
the Debtors to indemnify, reimburse or provide contribution to any present or
former officer, director or employee, or any present or former professionals or
advisors of the Debtors, including, without limitation, accountants, auditors,
financial consultants, underwriters or attorneys, whether
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pursuant to charter, by law, contract or statute, regardless of whether the
indemnification is owed in connection with a pre-Petition Date or post-Petition
occurrence.
"Interest" means all rights (including unpaid dividends)
arising from any equity security (as defined in section 101(16) of the Code) of
the Debtors, including, without limitation, the Common Stock, but excluding
Common Stock Claims.
"License Co. L.L.C." means the limited liability company
formed as a wholly owned subsidiary of MCCA that will hold the Reorganized
Debtors' Licenses after the Effective Date.
"Licenses" means the licenses and other authorizations of the
Debtors to operate their paging networks.
"Lien" means, with respect to any interest in property, any
mortgage, lien, pledge, charge, security interest, easement or encumbrance of
any kind whatsoever affecting such interest in property.
"Merger" means the merger of Communications into Merger
Subsidiary contemplated by the Merger Agreement and Section 4.2(B).
"Merger Agreement" means the Agreement and Plan of Merger by
and among Arch, the Merger Subsidiary, MobileMedia and Communications dated as
of August 18, 1998, as amended from time to time.
"MCCA" means Mobile Communications Corporation of America, a
Mississippi corporation.
"Miscellaneous Secured Claim" means a Secured Claim not
classified in Class 4 under this Plan.
"Net Tower Sale Proceeds" shall be the Net Cash Proceeds (as
defined in the DIP Credit Agreement) from the Debtors' sale of their towers and
certain related assets, as set forth in the Tower Sale Agreement, which Net Cash
Proceeds shall be at least $165 million.
"Non-Priority Unsecured Claim" means any Unsecured Claim not
classified in Class 3, 5, 7, 8 or 9 under this Plan.
"Note Litigation Claim" means any Claim with respect to the
Notes of the kind described in section 510(b) of the Code, including, without
limitation, any such Claim asserted in or by the parties to the Securities
Actions and any Claim by an officer, director or underwriter for contribution,
reimbursement or indemnification related thereto.
"Notes" means, collectively, the Dial Page Notes, the 93/8%
Notes and the 10 1/2% Notes.
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"Person" means any person, including, without limitation, any
individual, partnership, joint venture, corporation, company, trust, estate,
unincorporated organization and any governmental unit.
"Personal Injury Claim" means a Claim against any of the
Debtors that is unliquidated or contingent as of the Confirmation Date and is of
the kind described in 28 U.S.C. ss. 157(b)(5).
"Petition Date" means January 30, 1997, the date on which the
petitions initiating the Cases were filed with the Bankruptcy Court.
"Plan" means this Second Amended Joint Plan of Reorganization,
as amended from time to time, and all addenda, exhibits, schedules and other
attachments hereto, as the same may be amended from time to time, pursuant to
this Plan or the Code, all of which are incorporated herein by reference.
"Pre-Petition Agent" means The Chase Manhattan Bank, in its
capacity as the agent for the Pre-Petition Lenders under the 1995 Credit
Agreement.
"Pre-Petition Lenders" means those financial institutions from
time to time party to the 1995 Credit Agreement as lenders.
"Priority Claim" means a Claim to the extent that it is of the
kind described in, and entitled to priority under, section 507(a)(3), (a)(4) or
(a)(6) of the Code.
"Priority Tax Claim" means a Claim to the extent that it is of
the kind described in, and entitled to priority under, section 507(a)(8) of the
Code.
"Pro Rata Share" means proportionately, so that with respect
to an Allowed Claim other than an Allowed Class 6 Claim, the ratio of (i) the
amount of payments or other property distributable on account of a particular
Allowed Claim in a particular Class under this Plan to (ii) the amount of such
Allowed Claim in such Class is the same as the ratio of (a) the amount of
payments or other property distributable on account of all Allowed Claims in
such Class to (b) the amount of all Allowed Claims in such Class.
"Registration Rights Agreement" means a registration rights
agreement to be entered into pursuant to Section 4.9 between Arch and any Person
entitled to become a party to such registration rights agreement under Section
4.9, which shall be in substantially the form attached as Exhibit A.
"Reorganized Communications" means, on and after the Effective
Date, Merger Subsidiary, the successor to Communications (as reorganized under
and pursuant to this Plan) and a wholly owned subsidiary of Arch as a result of
the Merger.
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"Reorganized Debtors" means, on and after the Effective Date,
Reorganized Communications and Reorganized MCCA.
"Reorganized Debtor's Certificate of Incorporation" means, (i)
as to Reorganized Communications, the Certificate of Incorporation of Merger
Subsidiary, as amended by the Certificate of Merger relating to the Merger and
except that the name of the corporation set forth therein shall be changed to
"MobileMedia Communications, Inc.", and (ii) as to Reorganized MCCA, the
Certificate of Incorporation of Delaware Subsidiary Co.
"Reorganized Debtor's Bylaws" means, as to Reorganized
Communications, the Bylaws of Merger Subsidiary, and as to Reorganized MCCA, the
Bylaws of Delaware Subsidiary Co.
"Reorganized MCCA" means Delaware Subsidiary Co., the
successor to MCCA (as reorganized under and pursuant to this Plan) and a wholly
owned subsidiary of Reorganized Communications.
"Rights" means certificated, transferable rights issued by
Arch. The securities to be offered pursuant to the Rights will include (i) an
aggregate number of Arch Common Shares determined in accordance with Schedule II
to the Merger Agreement and (ii) if there has been no Rights Offering
Adjustment, Arch Warrants entitling the holders thereof to purchase an aggregate
number of Arch Common Shares determined as described in Schedule II to the
Merger Agreement. Each Right will be exercisable for one Unit.
"Rights Offering" means the issuance of the Rights by Arch to
holders of Allowed Class 6 Claims on the Rights Offering Commencement Date.
"Rights Offering Adjustment" has the meaning set forth in
Schedule II to the Merger Agreement.
"Rights Offering Commencement Date" means the date on which
Arch commences the Rights Offering by mailing to holders of Allowed Class 6
Claims as of the Rights Offering Initial Record Date certificates representing
the Rights and instructions for the exercise thereof, which date shall be as
soon as practicable after the later to occur of (i) approval by the Bankruptcy
Court of the Disclosure Statement and (ii) the effectiveness of the Registration
Statement (as defined in the Merger Agreement).
"Rights Offering Distribution Pool" means all of the Rights
minus the Rights included in the Rights Reserve.
"Rights Offering Expiration Date" means 5:00 p.m., New York
City time, on the date on which the Rights Offering terminates, which date shall
be established by Arch and Communications, on or prior to the Confirmation Date,
but shall be not less than 15 calendar days after the date on which all the
conditions to effectiveness of this Plan shall have been satisfied or waived
(other than (i) the requirement that the order entered by the FCC has become a
Final
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Order in connection with the condition set forth in Section 5.1(e) of the Merger
Agreement, and (ii) such conditions that by their nature are to be satisfied on
the Effective Date).
"Rights Offering Initial Record Date" means the date that is
the record date to determine which holders of Claims are entitled to vote on
this Plan.
"Rights Offering Pro Rata Share" means, as to any Allowed
Class 6 Claim, a fraction, (i) the numerator of which is the amount of such
Allowed Class 6 Claim as of the date of determination and (ii) the denominator
of which is the aggregate amount of Allowed Class 6 Claims as of the Rights
Offering Initial Record Date.
"Rights Offering Supplemental Record Date" means the
Confirmation Date.
"Rights Reserve" means, as of the Rights Offering Initial
Record Date, a number of Rights equal to the product of (i) the total number of
Rights, and (ii) a fraction, (A) the numerator of which is the sum of the
estimated aggregate amount of (x) Class 6 Claims that are Disputed Claims and
(y) Claims arising from the rejection of executory contracts and unexpired
leases pursuant to Section 3.1 that are anticipated to become Allowed Claims,
such estimate to be mutually agreed upon by the Debtors, the Committee and Arch,
in good faith, or determined by the Bankruptcy Court if no such agreement can be
reached, and (B) the denominator of which is the sum of the estimated aggregate
amount of (x) Class 6 Claims that are Disputed Claims, (y) Claims arising from
the rejection of executory contracts and unexpired leases pursuant to Section
3.1 that are anticipated to become Allowed Claims, such estimate to be mutually
agreed upon by the Debtors, the Committee and Arch, in good faith, or determined
by the Bankruptcy Court if no such agreement can be reached, and (z) all Allowed
Class 6 Claims as of such date.
"Schedules" means the joint Schedules of Assets, Liabilities
and Executory Contracts filed by the Debtors with the Clerk of the Bankruptcy
Court for the District of Delaware pursuant to Bankruptcy Rule 1007, as such
schedules have been or may be amended or supplemented by the Debtors from time
to time.
"Secured Claim" means a Claim that is secured by a Lien on, or
interest in, property of any of the Debtors, or that is subject to setoff under
section 553 of the Code, but only to the extent of the value of the Creditor's
interest (directly or by enforceable subrogation) in the Debtor's interest in
such property, or to the extent of the amount subject to setoff, which value
shall be determined as provided in section 506(a) of the Code or as provided in
this Plan.
"Securities Actions" means, collectively, the actions styled
In re MobileMedia Securities Litigation, No. 96-5723 (AJL) (D. N.J. 1996), Xxxxx
X. Xxxxxxxxx Trust x. Xxxxxxx & Xxxxxxxx Capital Partners II, L.P., et al.,
Civil Action No. 97-3543 (N.D. Cal. 1997) and Xxxxx X. Xxxxxxxxx Trust x.
Xxxxxxx & Xxxxxxxx MobileMedia Partners, L.L.C., et al., Xxxx Xx. 000000 (Xxx.
Super. Ct. 1997).
"Semi-Annual Distribution Date" means the last Business Day of
each June and December after the Effective Date and prior to the Final
Distribution Date; provided, that if the
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Effective Date is within 60 days before the end of June or December, the first
Semi-Annual Distribution Date will be the last Business Day of the next
succeeding June (if the Effective Date is in December) or December (if the
Effective Date is in June).
"Standby Purchase Commitment" means the various commitments of
the Standby Purchasers to purchase Units in the event any Rights are not
exercised in the Rights Offering, as evidenced by the letters attached hereto as
Exhibits B-1 through B-6, as such letters may be amended from time to time.
"Standby Purchasers" means those creditors of the Debtors that
have executed a Standby Purchase Commitment.
"Subordinated Indemnification Obligation Claims" means
Indemnification Obligations that are rejected pursuant to Section 7.5(A) and any
Claims arising therefrom.
"Subordinated Indentures" means, collectively, the 93/8% Note
Indenture and the 10 1/2% Note Indenture.
"Subordinated Noteholder Claims" means all Claims arising
under or relating to the Subordinated Notes, the Subordinated Indentures and
related agreements, other than Note Litigation Claims.
"Subordinated Notes" means, collectively, the 93/8% Notes and
the 10 1/2% Notes.
"Subsidiary Claim" means any Claim by a Debtor against another
Debtor.
"Subsidiary Interest" means any Interest held by a Debtor in
another Debtor, including all options, warrants and other rights to purchase any
such Interest in a Debtor held by another Debtor.
"Tower Sale Agreement" means the Purchase Agreement between
the Debtors and Pinnacle Towers Inc. dated July 7, 1998, as approved by the
Bankruptcy Court on August 10, 1998, or as amended in accordance therewith and
in accordance with the order of the Bankruptcy Court.
"Unit" means (i) if there has not been a Rights Offering
Adjustment, (x) one Arch Capital Share and (y) 0.__ of an Arch Warrant(1) and
(ii) if there has been a Rights Offering Adjustment, one Arch Capital Share.
--------
(1) The fraction of an Arch Warrant that will be included in each Unit will
equal the fraction obtained by dividing (i) the total number of Arch Warrants
purchasable upon exercise of Rights by (ii) the total number of Arch Capital
Shares purchasable upon exercise of Rights (which will be determined based on
the pricing mechanism set forth in Schedule II to the Merger Agreement).
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"Unsecured Claim" means a Claim that is not an Administrative
Claim, a Priority Claim, a Priority Tax Claim or a Secured Claim.
"Voting Deadline" means that date set in an order of the
Bankruptcy Court as the deadline for the return of Ballots accepting or
rejecting this Plan.
1.2 Interpretation. For purposes of this Plan: (a) whenever
from the context it is appropriate, each term, whether stated in the singular or
the plural, will include both the singular and the plural; (b) unless otherwise
provided in this Plan, any reference in this Plan to a contract, instrument,
release, indenture or other agreement or document being in a particular form or
on particular terms and conditions means that such document will be
substantially in such form or substantially on such terms and conditions; (c)
unless otherwise provided in this Plan, any reference in this Plan to an
existing document or Exhibit means such document or Exhibit, as it may have been
or may be amended, modified or supplemented pursuant to this Plan; (d) unless
otherwise specified herein, any reference to an entity as a holder of a Claim
includes that entity's successors, assigns and affiliates; (e) unless otherwise
specified, all references in this Plan to Sections, Articles and Exhibits are
references to Sections, Articles and Exhibits of or to this Plan; (f) the words
"herein" and "hereto" refer to this Plan in its entirety rather than to a
particular portion of this Plan; (g) captions and headings to Articles and
Sections are inserted for convenience of reference only and are not intended to
be part of or to affect the interpretation of this Plan; and (h) the rules of
construction set forth in section 102 of the Code will apply.
1.3 Computation of Time. In computing any period of time
prescribed or allowed by this Plan, the provisions of Bankruptcy Rule 9006(a)
will apply.
ARTICLE II
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
The following is a designation of the Classes of Claims and
Interests classified under this Plan, and the treatment to be provided to each
such Class.
A Claim or Interest shall be deemed classified in a particular
Class only to the extent that the Claim or Interest qualifies within the
description of that Class and shall be deemed classified in a different Class to
the extent that any remainder of the Claim or Interest qualifies within the
description of such different Class. Administrative Claims and Priority Tax
Claims have not been classified in accordance with section 1123(a)(1) of the
Code, although the treatment for such unclassified Claims is set forth below.
The treatment of and consideration to be provided on account
of Claims and Interests pursuant to this Plan shall be in full settlement,
release and discharge of such Claims and Interests; provided, that such
discharge shall not affect the liability of any other entity on, or the property
of any other entity encumbered to secure payment of, any such Claim or Interest,
except as otherwise provided in this Plan; and provided, further, that such
discharge shall not affect the Reorganized Debtors' obligations under and
pursuant to this Plan. The treatment of and
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consideration to be provided to Allowed Claim and Interest holders in each Class
shall apply to all of the Cases.
No Claim shall entitle the holder thereof to a distribution of
cash or securities or to other consideration pursuant to this Plan unless, and
only to the extent that, such Claim is an Allowed Claim.
UNCLASSIFIED CLAIMS
2.1 Administrative Claims.
A. General. Subject to the provisions of Section 4.4(A)
and unless otherwise agreed by the holder of an Allowed Administrative Claim (in
which event such other agreement shall govern), each holder of an Allowed
Administrative Claim shall receive on account of such Administrative Claim: (i)
cash equal to the unpaid amount of such Allowed Administrative Claim; or (ii) at
the option of Reorganized Communications, payment in accordance with the
ordinary business terms of such Allowed Administrative Claim.
B. Statutory Fees. On or before the Effective Date,
Administrative Claims for fees payable pursuant to section 1930 of title 28 of
the United States Code, 28 U.S.C. ss. 1930, as determined by the Bankruptcy
Court at the Confirmation Hearing, will be paid in cash in an amount equal to
the amount of such Administrative Claims. All such fees payable after the
Effective Date will be assumed by the Reorganized Debtors.
C. Ordinary Course Liabilities. Administrative Claims
based on liabilities incurred by the Debtors in the ordinary course of their
businesses will be assumed and paid by Reorganized MCCA pursuant to the terms
and conditions of the particular transaction giving rise to such Administrative
Claim, without any further action by the holders of such Claims.
D. Funding of Certain Administrative Claims. Arch shall
make available to Reorganized Communications any monies necessary for
Reorganized Communications to make timely payment of all Administrative Claims;
provided, that in the event the sum of Capped Administrative Claims and the
costs and expenses of the Standby Purchasers as provided in the Standby Purchase
Commitment exceeds $34,000,000, the number of Arch Common Shares constituting
the Creditor Stock Pool shall be reduced by a number of shares equal to (i) the
excess of the sum of (x) Capped Administrative Claims and (y) the costs and
expenses of the Standby Purchasers as provided in the Standby Purchase
Commitment over $34,000,000, divided by (ii) $25.315.
2.2 Priority Tax Claims. Unless otherwise agreed by the
holder of an Allowed Priority Tax Claim (in which event such other agreement
shall govern), each holder of an Allowed Priority Tax Claim against any of the
Debtors shall, on the Effective Date, receive, at Arch's option, either (a) cash
equal to the amount of such Allowed Priority Tax Claim or (b) a promissory note
payable by Reorganized Communications in a principal amount equal to the amount
of such Allowed Priority Tax Claim on which interest shall accrue from and after
the
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Effective Date at the rate of 7% or such higher or lower rate as is determined
by the Bankruptcy Court to be appropriate under section 1129(a)(9)(C) of the
Code and shall be paid semiannually in arrears; the principal amount of the
promissory note shall be paid in full on a date or dates six (6) years after the
date of assessment of such Allowed Priority Tax Claim.
CLASSIFIED CLAIMS AGAINST AND INTERESTS IN THE DEBTORS
2.3 Class 1 Claims (Priority Claims).
A. Classification. Class 1 consists of all Priority
Claims against any of the Debtors.
B. Allowance. Claims in Class 1 shall be allowed or
disallowed in accordance with Section 4.4(B) of this Plan and applicable
provisions of the Code and Bankruptcy Rules.
C. Treatment. Allowed Claims in Class 1 shall be paid in
full in cash on the later of the Effective Date and a date that is as soon as
practicable after the date upon which such Claim becomes an Allowed Priority
Claim.
D. Impairment and Voting. Class 1 Claims are unimpaired
and are not entitled to vote on this Plan.
2.4 Class 2 Claims (Miscellaneous Secured Claims).
A. Classification. Class 2 consists of all Miscellaneous
Secured Claims against any of the Debtors, if any.
B. Allowance. Claims in Class 2 shall be allowed or
disallowed in accordance with Section 4.4(B) of this Plan and applicable
provisions of the Code and Bankruptcy Rules.
C. Treatment. The legal, equitable and contractual rights
to which each holder of an Allowed Claim in Class 2 is entitled shall be left
unaltered or, at the option of the Reorganized Debtors, shall be left unimpaired
in the manner described in section 1124(2) of the Code.
D. Impairment and Voting. Class 2 Claims are unimpaired
and are not entitled to vote on this Plan.
2.5 Class 3 Claims (Customer Refund Claims).
A. Classification. Class 3 consists of all Customer
Refund Claims against any of the Debtors not otherwise classified in Class 1 or
Class 2.
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B. Allowance. Claims in Class 3 shall be allowed or
disallowed in accordance with Section 4.4(B) of this Plan and applicable
provisions of the Code and Bankruptcy Rules.
C. Treatment. The legal, equitable and contractual rights
to which each holder of an Allowed Claim in Class 3 is entitled shall be left
unaltered or, at the option of the Reorganized Debtors, shall be left unimpaired
in the manner described in section 1124(2) of the Code.
D. Impairment and Voting. Class 3 Claims are unimpaired
and are not entitled to vote on this Plan.
2.6 Class 4 Claims (Claims arising under or related to the
1995 Credit Agreement).
A. Classification. Class 4 consists of all Secured Claims
against any of the Debtors arising under or related to the 1995 Credit
Agreement.
B. Allowance. Allowed Class 4 Claims shall consist of the
following unpaid obligations arising under the 1995 Credit Agreement, and shall
be Allowed in an aggregate amount equal to: (i) $649,000,000 minus the Net Tower
Sale Proceeds actually paid to the Pre-Petition Agent on behalf of the holders
of Allowed Class 4 Claims; (ii) reasonable accrued and unpaid commitment, letter
of credit and similar fees under the 1995 Credit Agreement, in an amount, as of
the Petition Date, equal to $179,148.29, together with any such amounts accrued
after the Petition Date and unpaid as of the Effective Date; (iii) the unpaid,
reasonable costs and expenses of the Pre-Petition Agent, to the extent provided
in the 1995 Credit Agreement; and (iv) the unpaid, reasonable costs and expenses
of the members of the Steering Committee for the Pre-Petition Lenders, other
than the Pre-Petition Agent, up to the aggregate amount of $1,000,000. Adequate
protection payments in connection with, and the costs and expenses of the
Pre-Petition Agent arising under, the 1995 Credit Agreement shall continue to be
paid in cash through the Effective Date at the rate and in the manner set forth
under the DIP Approval Orders. Class 4 Claims shall not include interest accrued
at the default rate under Section 5.4(c) of the 1995 Credit Agreement or
otherwise.
C. Treatment. Each holder of an Allowed Claim in Class 4
shall receive, in full satisfaction of its Claim, cash equal to the amount of
its Allowed Claim, payable in accordance with Section 4.3(A).
D. Impairment and Voting. Class 4 Claims are impaired and
are entitled to vote on this Plan.
2.7 Class 5 Claims (Claims arising under or related to the Dial
Page Notes).
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A. Classification. Class 5 consists of all Claims against
any of the Debtors arising under or related to the Dial Page Notes, the Dial
Page Indenture and related agreements, other than Note Litigation Claims.
B. Allowance. Class 5 Claims shall be Allowed Claims in
the sum of: (i) the outstanding principal amount of the Dial Page Notes; (ii)
unpaid interest on the Dial Page Notes accrued to the Effective Date calculated
at the non-default rate set forth in the Dial Page Notes; and (iii) the unpaid
reasonable fees and expenses of the trustee for the Dial Page Notes incurred
prior to the Petition Date, to the extent provided for in the Dial Page
Indenture.
C. Treatment. Each holder of an Allowed Claim in Class 5
shall receive, in full satisfaction of its Claim, cash equal to the full amount
of its Allowed Claim, payable in accordance with Section 4.3(B).
D. Impairment and Voting. Class 5 Claims are impaired and
are entitled to vote on this Plan.
2.8 Class 6 Claims (Non-Priority Unsecured Claims).
A. Classification. Class 6 consists of all Non-Priority
Unsecured Claims against any of the Debtors, including the Subordinated
Noteholder Claims.
B. Allowance. (i) Class 6 Claims other than Subordinated
Noteholder Claims and Personal Injury Claims shall be allowed or disallowed in
accordance with Section 4.4(B) and applicable provisions of the Code and
Bankruptcy Rules, (ii) Subordinated Noteholder Claims other than Claims of the
indenture trustees under the Subordinated Indentures shall be Allowed Claims in
the sum of: (x) the outstanding principal amount (or outstanding accreted
principal amount, as the case may be) of the Subordinated Notes and (y) unpaid
interest on the Subordinated Notes accrued prior to the Petition Date calculated
at the non-default rate set forth in the Subordinated Notes, (iii) Subordinated
Noteholder Claims for the indenture trustees under the Subordinated Indentures
shall be Allowed Claims in an amount equal to the unpaid reasonable fees and
expenses of each such indenture trustee incurred prior to and after the Petition
Date through the Effective Date, to the extent provided for in the Subordinated
Indentures, and (iv) Personal Injury Claims shall be liquidated and allowed or
disallowed in the district court in which the Cases are pending, or in the
district court in the district in which the claim arose, as determined by the
district court in which the Cases are pending.
C. Treatment.
1. Each holder of an Allowed Claim in Class 6 (other
than the indenture trustees under the Subordinated Indentures) shall receive:
(a) for each holder of an Allowed Claim as of the
Rights Offering Initial Record Date, from Arch on the
Rights Offering
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Commencement Date, its Rights Offering Pro Rata Share
of the Rights Offering Distribution Pool;
(b) for each holder of a Claim that becomes an Allowed
Claim after the Rights Offering Initial Record Date
but before the Rights Offering Supplemental Record
Date, (i) from Arch, as soon as practicable after the
Rights Offering Supplemental Record Date, an amount of
Rights from the Rights Reserve equal to the amount of
Rights that would have been such holder's Rights
Offering Pro Rata Share of the Rights Offering
Distribution Pool if such holder's Claim had been an
Allowed Claim as of the Rights Offering Initial Record
Date or, (ii) if the number of Rights in the Rights
Reserve on the Rights Offering Supplemental Record
Date is insufficient to make the distribution set
forth in clause (i), from Arch, (x) its ratable share
(based on such holders' respective amounts of Allowed
Class 6 Claims) of the Rights in the Rights Reserve on
such date and (y) its Cash Equivalent of each Right
(or portion thereof) that would have been distributed
pursuant to clause (i) if sufficient Rights had been
available in the Rights Reserve on the Rights Offering
Supplemental Record Date;
(c) from Arch on the Effective Date, if such holder
has exercised any or all of its Rights in accordance
with the terms and conditions thereof, for each Right
so exercised, a Unit;
(d) for each holder of a Claim in Class 6 that is not
Allowed as of the Rights Offering Supplemental Record
Date, from Arch, instead of receiving any Rights, as
soon as reasonably practical after such Claim becomes
an Allowed Claim (but no sooner than the Effective
Date), its Cash Equivalent;
(e) from the Exchange Agent (x) if such Claim is an
Allowed Claim on the Effective Date, on or as soon as
practicable after the Effective Date, its Class 6 Pro
Rata Share of the Creditor Stock Pool or (y) if such
Claim is not an Allowed Claim on the Effective Date,
on a later date after which the Claim is Allowed, its
Class 6 Pro Rata Share of the Creditor Stock Pool; and
(f) from the Exchange Agent on the Final Distribution
Date, its Class 6 Adjusted Pro Rata Share of the Arch
Common Shares remaining in the Creditor Stock Pool, if
any, on such date; provided, that if there are fewer
than 10,000 Arch Common Shares remaining in the
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Creditor Stock Pool on the Final Distribution Date, no
distribution will be made to holders of Allowed Class
6 Claims on such date, and the Arch Common Shares
remaining in the Creditor Stock Pool on such date
shall be returned to Arch and become treasury shares.
2. In lieu of the foregoing treatment, any holder of a
Claim in Class 6 of $1,000 or less may elect, by marking the appropriate box on
the Ballot sent to such holder, to receive cash equal to 50% of its Allowed
Claim, or, if such holder's claim is in excess of $1,000, such holder may elect
to have its Claim reduced to and Allowed at $1,000 and receive cash with respect
to such reduced Claim in accordance with this Section 2.8(C)(2).
3. On the Effective Date, the Reorganized Debtors
shall pay to the indenture trustees under the Subordinated Indentures cash equal
to the amount of fees and expenses of the indenture trustees (including the
reasonable fees and expenses of counsel retained by the indenture trustees), in
accordance with and to the extent provided for in the Subordinated Indentures,
whether incurred prior or subsequent to the Petition Date, without application
by or on behalf of the indenture trustees or their respective counsel to the
Bankruptcy Court.
D. Impairment and Voting. Class 6 Claims are impaired
and are entitled to vote on this Plan.
2.9 Class 7 Claims (Note Litigation Claims).
A. Classification. Class 7 consists of all Note
Litigation Claims against any of the Debtors.
B. Treatment. The holders of Claims in Class 7 shall not
be entitled to receive or retain any property pursuant to this Plan on account
of their Claims.
C. Impairment and Voting. Class 7 Claims are impaired and
are deemed not to have accepted this Plan.
2.10 Class 8 Claims and Interests (Common Stock Claims and
Interests and Subordinated Indemnification Obligation Claims).
A. Classification. Class 8 consists of all Interests
arising from or related to the Common Stock, all Common Stock Claims and all
Subordinated Indemnification Obligation Claims against any of the Debtors.
B. Treatment. Interests in Class 8 shall be canceled, and
the holders of Claims and Interests in Class 8 shall not be entitled to receive
or retain any property on account of their Claims and Interests.
C. Impairment and Voting. Class 8 Claims and Interests
are impaired and are deemed not to have accepted this Plan.
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2.11 Class 9 Claims and Interests (Subsidiary Claims and
Interests).
A. Classification. Class 9 consists of all Subsidiary
Claims and Subsidiary Interests.
B. Treatment. The Interests in Class 9 shall be canceled,
except that, in accordance with Section 4.2(B), Reorganized Communications shall
retain its Interests in Reorganized MCCA, and the holders of Claims and
Interests in Class 9 shall not be entitled to receive or retain any property on
account of such Claims and Interests.
C. Impairment and Voting. Class 9 Claims and Interests
are impaired and are deemed not to have accepted this Plan.
ARTICLE III
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
3.1 Rejection. No later than 25 days prior to the Voting
Deadline, the Debtors, at the direction of Arch, shall prepare a schedule of the
executory contracts and unexpired leases to be rejected on the Effective Date
(the "Rejection Schedule"). The Rejection Schedule shall be filed and served on
each party to an executory contract or unexpired lease listed thereon to be
rejected by the Debtors no later than twenty days prior to the Voting Deadline.
Any claims for damages arising from the rejection of an executory contract or
unexpired lease listed on the Rejection Schedule must be filed by the Voting
Deadline and shall be determined, if necessary, at Confirmation. The Rejection
Schedule may be amended from and after the Confirmation Date for sixty days
thereafter (but in no event after the Effective Date) by the Debtors at the
direction of Arch and with notice to any party to an executory contract or
unexpired lease added to or removed from such schedule. Any claims for damages
arising from the rejection of an executory contract or unexpired lease rejected
after the Confirmation Date pursuant to this Section 3.1 must be filed within 20
days after receipt of notice of rejection of such contract. Any such Claims not
filed within the applicable 20-day period shall be barred and may not thereafter
be asserted.
3.2 Assumption.
A. Assumed Contracts. Each executory contract or
unexpired lease of the Debtors that has not expired by its own terms prior to
the Effective Date, has not been rejected during the Cases prior to
Confirmation, is not subject to a notice of rejection and is not rejected under
this Plan shall, by the terms of this Plan, be assumed by Reorganized MCCA
pursuant to sections 365 and 1123(b)(2) of the Code on the Effective Date. All
such assumed contracts, unexpired leases, franchises and permits, and any
contracts or unexpired leases assumed by the Debtors by order of the Bankruptcy
Court prior to the Confirmation Date, shall be vested in and continue in effect
for the benefit of the Reorganized Debtors.
B. Cure Payments and Release of Liability. The Debtors
shall, at least twenty days prior to the Voting Deadline, file and serve on all
parties to executory contracts and
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unexpired leases to be assumed as of the Effective Date, and on the Pre-Petition
Agent, the Committee and Arch a schedule setting forth the amount of cure and
compensation payments to be provided by the Reorganized Debtors in accordance
with section 365(b)(1) of the Code, which schedule shall be acceptable to Arch.
Objections to any such proposed cure payment must be made by the Voting
Deadline, and shall be determined, if necessary, at the Confirmation Hearing. In
the event the Debtors amend the Rejection Schedule pursuant to Section 3.1 after
the Confirmation Date to remove an executory contract or unexpired lease
therefrom, the Debtors shall, within five days after such amendment to the
Rejection Schedule, file and serve on all parties to executory contracts and
unexpired leases to be assumed as a result of any such Schedule amendment, and
on the Pre-Petition Agent, the Committee and Arch, a supplemental schedule
setting forth the amount of cure and compensation payments to be provided by the
Reorganized Debtors in accordance with section 365(b)(1) of the Code, which
supplemental schedule of cure payments shall be reasonably acceptable to Arch.
Objections to any proposed cure payment set forth in the supplemental schedule
must be made within 20 days after receipt thereof. A party to an assumed
executory contract or unexpired lease that has not filed an appropriate pleading
with the Bankruptcy Court on or before the applicable 20-day period shall be
deemed to have waived its right to dispute such amount. All unpaid cure and
compensation payments under any executory contracts or unexpired leases that are
assumed or assumed and assigned under this Plan (including, without limitation,
Claims filed in the Cases or listed in the Schedules and Allowed by order of the
Bankruptcy Court prior to the Confirmation Date that relate to executory
contracts or unexpired leases that are assumed or assumed and assigned under
this Plan) shall be made by the Reorganized Debtors as soon as practicable after
the Effective Date, but not later than thirty days after the Effective Date;
provided, that, in the event of a dispute regarding the amount of any cure and
compensation payments, the Reorganized Debtors shall make such cure and
compensation payments as may be required by section 365(b)(1) of the Code
following the entry of a Final Order resolving such dispute.
C. Continuation of Employment Agreements and Benefits
Agreements. On the Effective Date, the Debtors shall assume pursuant to sections
365 and 1123(b)(2) of the Code the employment and benefit agreements set forth
on Schedule 1.
3.3 Post-Petition Contracts and Leases. All contracts and
leases entered into by the Debtors after the Petition Date, including (a) the
Tower Sale Agreement and (b) the Master Lease between Communications and
Pinnacle Towers Inc. to be entered into pursuant to the Tower Sale Agreement,
but excluding the DIP Credit Agreement, shall be deemed assigned by the Debtors
to Reorganized MCCA on the Effective Date.
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ARTICLE IV
IMPLEMENTATION OF PLAN
4.1 Actions Occurring Prior to the Effective Date.
A. Actions Occurring Before the Confirmation Date.
1. Rights Offering. Pursuant to the Merger
Agreement, Arch will commence the Rights Offering and the Arch Stockholder
Rights Offering.
2. Standby Purchase Commitments. Each of the
Standby Purchasers has executed the Standby Purchase Commitment, copies of which
are attached hereto as Exhibits B-1 through B-6.
B. Actions Occurring Between the Confirmation Date and
the Effective Date.
1. Management and Operation of Debtors. After the
Confirmation Date and until the Effective Date, the Debtors shall be managed by
substantially the same personnel that managed and operated the Debtors on the
Confirmation Date, subject to such changes as may be determined by the Board of
Directors of a Debtor in accordance with the Bylaws and Articles or Certificate
of Incorporation of such Debtor. During such period, the Debtors will conduct
their business in the usual, regular and ordinary course, in a manner consistent
with past practice, sound business practice and the terms of this Plan and the
Merger Agreement, and subject to their obligations as debtors-in-possession
pursuant to the Code.
2. Continuation of Committee. The Committee shall
continue to exist after the Confirmation Date until the Effective Date with the
same power and authority, and the same ability to retain and compensate
professionals, as it had prior to the Confirmation Date, and shall be dissolved
on the Effective Date.
3. Rights of Creditors and Committee. Between the
Confirmation Date and the Effective Date, the Committee, the holders of Claims
against and Interests in the Debtors and the indenture trustees for the Notes
shall be parties-in-interest in all proceedings in the Bankruptcy Court with the
same rights to participate in such proceedings as such persons had prior to
Confirmation.
4. Term of Injunctions or Stays. All injunction or
stays, whether by operation of law or by order of the Bankruptcy Court, provided
for in the Cases pursuant to sections 105 or 362 of the Code or otherwise that
are in effect on the Confirmation Date shall remain in full force and effect
until the Effective Date.
5. Sale of Rights Reserve. Arch shall select an
agent independent of Arch (as such term is defined in Regulation M promulgated
under the Securities
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Exchange Act of 1934), which independent agent shall be reasonably acceptable to
the Debtors and the Committee, to sell Rights from the Rights Reserve in the
over-the-counter market on a date or dates no more than five business days in
advance of the Rights Offering Expiration Date. All proceeds derived from such
sale shall be distributed to Arch.
4.2 Actions Occurring on the Effective Date.
A. Revesting of Assets. Except as provided in this Plan,
all property of the estate, to the full extent of section 541 of the Code, and
any and all other rights and assets of the Debtors of every kind and nature
shall, on the Effective Date of this Plan, revest in the Reorganized Debtors
free and clear of all Liens, Claims and Interests other than those Liens, Claims
and Interests retained or created pursuant to this Plan.
B. Merger. Effective as of the Effective Date but
immediately following the discharge of the Debtors described in Section 6.1,
each of the following transactions shall occur in the order listed: (i)
MobileMedia shall contribute all of its assets to Communications and thereafter
immediately dissolve, at which time the separate corporate existence of
MobileMedia shall cease; (ii) Communications shall merge with and into Merger
Subsidiary, and the separate corporate existence of Communications shall cease
as contemplated by the Merger Agreement; (iii) MCCA shall merge with and into
Delaware Subsidiary Co., a Delaware corporation originally a wholly owned direct
subsidiary of Communications and a wholly owned direct subsidiary of Merger
Subsidiary as a result of the merger described in clause (ii) of this Section
4.2(B), and the separate corporate existence of MCCA shall cease; (iv) all
wholly owned direct subsidiaries of MCCA shall be merged with and into Delaware
Subsidiary Co. (as successor to MCCA); (v) Merger Subsidiary (as successor to
Communications) shall contribute its interest in the common stock of FWS Radio,
Inc. to Delaware Subsidiary Co. (as successor to MCCA), and FWS Radio, Inc.
shall then be merged with and into Delaware Subsidiary Co. (as successor to
MCCA); (vi) MobileComm of the West, Inc., a wholly owned direct subsidiary of
Delaware Subsidiary Co. (as successor to MCCA) as a result of the mergers
described in clause (iv) of this Section 4.2(B), shall be merged with and into
Delaware Subsidiary Co. (as successor to MCCA); (vii) Dial Page Southeast, Inc.,
MobileMedia Communications, Inc. (California), MobileMedia DP Properties, Inc.,
MobileMedia Paging, Inc., MobileMedia PCS, Inc. and Radio Call Co. of Virginia,
Inc., all wholly owned direct subsidiaries of Merger Subsidiary (as successor to
Communications) shall be merged with and into Delaware Subsidiary Co. (as
successor to MCCA); (viii) Merger Subsidiary shall transfer its assets (other
than its shares of Delaware Subsidiary Co.) to Delaware Subsidiary Co.; and (ix)
Delaware Subsidiary Co. shall organize License Co. L.L.C. as a wholly owned
limited liability company of Delaware Subsidiary Co. and shall transfer the
Licenses then held by it to License Co. L.L.C. It is anticipated that License
Co. L.L.C. will be taxed as a branch of Delaware Subsidiary Co. Notwithstanding
the foregoing, Arch and the Reorganized Debtors retain their right to make such
changes in the post-Effective Date corporate structure of Arch and the
Reorganized Debtors as is determined in the business judgment of Arch and
Reorganized Communications.
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C. Amended Certificates of Incorporation and Corporate
Governance.
1. Certificates of Incorporation. As of the
Effective Date, each Reorganized Debtor's Certificate of Incorporation shall
comply with section 1123(a)(6) of the Code.
2. Bylaws. As of the Effective Date, the bylaws of
Reorganized Communications shall be the same as the bylaws of the Merger
Subsidiary as in effect immediately prior to the Effective Date (except that the
name of the corporation set forth therein shall be changed to "MobileMedia
Communications, Inc."), and the bylaws of Reorganized MCCA shall be the same as
the by laws of Delaware Subsidiary Co. as in effect immediately prior to the
Effective Date (except that the name of the corporation set forth therein shall
be changed to "Mobile Communications Corporation of America"). Each Reorganized
Debtor's Bylaws will be effective as of the Effective Date.
3. Corporate Governance. The directors and
officers of each Debtor shall continue to serve in such capacities until the
Effective Date. As of the Effective Date, the directors and officers of each
Debtor that is not a Reorganized Debtor will be terminated, the directors and
officers of Merger Subsidiary immediately prior to the Effective Date shall
become the directors and officers of Reorganized Communications, the directors
of Merger Subsidiary immediately prior to the Effective Date shall become the
directors of Reorganized MCCA and the officers of Delaware Subsidiary Co.
immediately prior to the Effective Date shall become the officers of Reorganized
MCCA. The Debtors shall file with the Bankruptcy Court no later than ten (10)
Business Days prior to the Voting Deadline a statement setting forth the office,
the names and affiliations of, and the compensation proposed to be paid to, the
individuals intended to serve as directors and officers of each Reorganized
Debtor, as well as of Arch, on and after the Effective Date. On and after the
Effective Date, each Reorganized Debtor shall be governed in accordance with
such Reorganized Debtor's Certificate of Incorporation and such Reorganized
Debtor's Bylaws.
4. Amendments after the Effective Date. After the
Effective Date, each Reorganized Debtor's Certificate of Incorporation, each
Reorganized Debtor's Bylaws and the officers and directors of each Reorganized
Debtor shall be subject to such amendments or changes as may be made by law, or
by such Reorganized Debtor's Certificate of Incorporation or such Reorganized
Debtor's Bylaws.
5. Estate Representative. Within 15 days after the
Confirmation Date, the Committee shall designate a person, subject to Arch's and
the Debtors' consent (which consent shall not be unreasonably withheld) (the
"Estate Representative"), who shall be responsible for the winding up of the
Debtors' estates after the Effective Date. The Estate Representative shall have
the authority to hire counsel and other advisors, to prosecute and settle
Disputed Claims, to oversee distributions by the Exchange Agent, to pursue any
preserved Causes of Action and otherwise to effect the closing of the Cases. The
Estate Representative shall be reimbursed for all reasonable expenses incurred
in the performance of his or her duties as Estate Representative by Arch based
on a monthly budget to be submitted to Arch no later than ten
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Business Days prior to the end of each month after the Effective Date for the
succeeding month, which Budget shall set forth in reasonable detail the proposed
activities to be undertaken by the Estate Representative during such month and
the estimated costs and expenses therefor. If Arch does not object to such
Budget within five Business Days after receipt thereof, it shall be the final
budget for such month. At least once every calendar quarter, the Estate
Representative shall report to Arch on the material activities taken in the
prior quarter and to be taken in the succeeding quarter, which activities shall
be reasonably acceptable to Arch.
D. Cancellation of Stock. On and as of the Effective
Date, the Common Stock, and each share of capital stock of each Debtor other
than MobileMedia not owned, beneficially and of record, by MobileMedia or one of
the other Debtors, shall be canceled and rendered null and void.
4.3 Distributions Occurring On and After the Effective Date.
A. Distributions to Holders of Allowed Class 4 Claims.
The cash distribution to be made to the holders of Allowed Class 4 Claims shall
be made by wire transfer by Arch on the Effective Date or the first Business Day
thereafter to the Pre-Petition Agent, which shall, subject to the rights of the
Pre-Petition Agent, if any, against the other holders of Allowed Class 4 Claims
under the 1995 Credit Agreement, promptly transmit to each such holder its Pro
Rata Share of the cash provided by Arch; provided, that, if requested by a
Standby Purchaser in writing at least two days prior to the Effective Date, any
cash to be distributed to the Standby Purchaser on account of such Standby
Purchaser's Allowed Class 4 Claim shall, in accordance with the instructions
included in such written request, be applied on behalf of the Standby Purchaser
first to the payment of any amounts required to be paid by such Standby
Purchaser in accordance with its Standby Purchase Commitment.
B. Distributions to Holders of Dial Page Notes.
1. Exchange of Notes. The cash distribution to be
made to the holders of Allowed Class 5 Claims shall be made by Reorganized
Communications to the Dial Page Indenture Trustee on the Effective Date or the
first Business Day thereafter, which shall, subject to the rights of such Dial
Page Indenture Trustee as against holders of the Dial Page Notes under the Dial
Page Indenture, transmit, upon surrender by a holder of its Dial Page Notes, the
cash to which such holder is entitled under Section 2.7(C). The reasonable fees
and expenses of the Dial Page Indenture Trustee incurred solely in connection
with making such distributions, unless otherwise paid hereunder, shall be paid
by Reorganized Communications to the extent so required by the Dial Page
Indenture or as otherwise agreed between Reorganized Communications, the Dial
Page Indenture Trustee and Arch, and in any case subject to required approvals
of the Bankruptcy Court, if any.
2. Lost Notes. If a holder of a Dial Page Note is
unable to surrender such Note because it has been destroyed, lost or stolen,
such holder may receive a distribution with respect to such Note upon request to
the Dial Page Indenture Trustee in an acceptable form with: (i) proof of such
holder's title to such Note; (ii) proof of the destruction or
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theft of such Note, or an affidavit to the effect that the same has been lost
and after diligent search cannot be found; and (iii) such indemnification as may
reasonably be required by the Reorganized Debtors to indemnify Arch, the
Reorganized Debtors, the Dial Page Indenture Trustee and all other persons
deemed appropriate by the Reorganized Debtors, against any loss, action, suit or
other claim whatsoever that may be made as a result of such holder's receipt of
a distribution on account of such Dial Page Note under this Plan.
C. Distributions from Arch. Arch will distribute to each
holder of an Allowed Class 6 Claim and each Standby Purchaser that exercised its
Rights in accordance with the terms thereof (and, in the case of the Standby
Purchasers, in accordance with the terms of the Standby Purchase Commitment), on
the Effective Date, for each Right so exercised, the Arch Common Shares or Arch
Class B Shares, as applicable, and, if no Rights Offering Adjustment shall have
occurred, Arch Warrants together comprising the Units subscribed for. Arch will
distribute to each holder of an Allowed Class 6 Claim that was not Allowed as of
the Rights Offering Supplemental Record Date, as soon as practicable after such
Claim is Allowed (but no sooner than the Effective Date), its Cash Equivalent,
as provided in Section 2.8(C)(1)(d). In the event the exercise of Rights and the
purchase of the Units would cause (i) any "person" or "group" (as such terms are
used in Section 13(d) and 14(d) of the Securities and Exchange Act of 1934) or
(ii) the Standby Purchasers collectively, on the Effective Date, in the
aggregate, to beneficially own, within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 and Rule 13d-3 and 13d-5 promulgated thereunder
(except that a Person shall be deemed to have beneficial ownership of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), (a) more than 49.0%
of the number of shares of the capital stock of Arch generally entitled to vote
in the election of directors or (b) more than 49.0% of the total voting power of
the capital stock of Arch, then, the "person" or "group" or the Standby
Purchasers, shall receive in lieu of the Arch Common Shares included in such
Units, Arch Class B Common Shares such that (x) such "person" or "group" or (y)
the Standby Purchasers collectively, on the Effective Date, in the aggregate,
beneficially own, within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, and Rule 13d-3 and 13d-5 promulgated thereunder (except
that a Person shall be deemed to have beneficial ownership of all securities
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), (i) no more than 49.0% of the
number of shares of the capital stock of Arch generally entitled to vote in the
election of directors and (ii) no more than 49.0% of the total voting power of
the capital stock of Arch on the Effective Date. For purposes of calculating the
percentages referred to above, it will be assumed that no additional Class 6
Claims are Allowed after the Effective Date and all of the Arch Common Shares in
the Creditor Stock Pool are distributed to the Allowed Class 6 Claims as of the
Effective Date.
D. Distributions from the Exchange Agent. On the
Effective Date, Arch will deliver to the Exchange Agent a certificate, in the
name of the Exchange Agent, for the number of Arch Common Shares comprising the
Creditor Stock Pool. Distributions to the holders of Allowed Class 6 Claims
other than on account of the Rights, on the Effective Date and thereafter, shall
be made by the Exchange Agent on behalf of Reorganized Communications from the
Arch Common Shares evidenced by the certificate so delivered by Arch.
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1. Holders of the Subordinated Notes. As soon as
practicable after the Effective Date, Reorganized Communications shall cause the
Exchange Agent to send a notice and a transmittal form (which shall specify that
delivery shall be effected and risk of loss and title to the Subordinated Notes
shall pass, only upon delivery of the Subordinated Notes to the Exchange Agent,
and shall be in such form and have such other reasonable provisions as Arch may
reasonably specify) to each holder of a Subordinated Note advising such holder
of the effectiveness of the Merger and this Plan and the procedure for
surrendering to the Exchange Agent such Subordinated Note in exchange for the
Arch Common Shares issuable to it pursuant to Section 2.8(C).
Commencing on the Effective Date, the Exchange Agent
shall distribute to each holder of an Allowed Claim that constitutes a
Subordinated Noteholder Claim, upon proper surrender of its Subordinated Notes,
its Pro Rata Share of the Creditor Stock Pool. Thereafter, on each Semi-Annual
Distribution Date, distributions of a holder's Pro Rata Share of the Creditor
Stock Pool shall be made to the holders of Allowed Class 6 Claims that
constitute Subordinated Noteholder Claims who have surrendered their
Subordinated Notes since the preceding SemiAnnual Distribution Date (or, with
respect to the first Semi-Annual Distribution Date, since the Effective Date).
Final distributions of Arch Common Shares shall be made on the Final
Distribution Date to each holder of an Allowed Class 6 Claim constituting a
Subordinated Noteholder Claim based on its Class 6 Adjusted Pro Rata Share of
the remaining shares in the Creditor Stock Pool (subject to Section
2.8(C)(1)(f)).
In the event of a transfer of ownership of Subordinated
Notes that is not registered on the transfer records of the indenture trustee
for such Subordinated Notes, the securities to be distributed may be distributed
to a transferee of the Subordinated Notes if an executed letter of transmittal
in form satisfactory to the Exchange Agent is presented to the Exchange Agent,
accompanied by such documents as are required to evidence and effect such
transfer and by evidence that any applicable transfer taxes have been paid.
After the Effective Date, there shall be no further
registration of transfers on the record books of Reorganized Communications of
the Subordinated Notes outstanding prior to the Effective Date. If, after the
Effective Date, the Subordinated Notes are presented to Reorganized
Communications for any reason, they shall be canceled and exchanged as provided
in this Section 4.3(D)(1).
If any Arch Common Shares are to be issued in the name of
a person other than the person in whose name the Subordinated Note surrendered
in exchange therefor is registered, it shall be a condition to the issuance of
such Arch Common Shares that (i) the Subordinated Note so surrendered shall be
transferable, and shall be properly assigned and endorsed, (ii) such transfer
shall otherwise be proper and (iii) the person requesting such transfer shall
pay to the Exchange Agent any transfer or other taxes payable by reason of the
foregoing or establish to the satisfaction of the Exchange Agent that such taxes
have been paid or are not required to be paid. Notwithstanding the foregoing,
neither the Exchange Agent nor any Person shall be liable to a holder of
Subordinated Notes for any Arch Common Shares issuable to such holder pursuant
to
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Section 2.8(C) that are delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
No dividends or other distributions that are payable to
the holders of record of Arch Common Shares as of a date on or after the
Effective Date shall be paid to holders of Allowed Class 6 Claims entitled to
receive Arch Common Shares pursuant to Section 2.8(C) until such holders
surrender their Subordinated Notes in accordance with this Section 4.3(D)(1).
Upon such surrender, Arch shall pay or deliver to the persons in whose name the
certificates representing such Arch Common Shares are issued any dividends or
other distributions that have been paid or are payable to the holders of record
of Arch Common Shares as of a date on or after the Effective Date and which were
paid or delivered between the Effective Date and the time of such surrender;
provided, that no such person shall be entitled to receive any interest on such
interest payments, dividends or other distributions.
If a holder of a Subordinated Note is unable to surrender
such Note because it has been destroyed, lost or stolen, such holder may receive
a distribution with respect to such Note upon request to the Exchange Agent in
an acceptable form with: (i) proof of such holder's title to such Note; (ii)
proof of the destruction or theft of such Note, or an affidavit to the effect
that the same has been lost and after diligent search cannot be found; and (iii)
such indemnification as may reasonably be required by the Reorganized Debtors to
indemnify Arch, the Reorganized Debtors, the Exchange Agent and all other
persons deemed appropriate by the Reorganized Debtors against any loss, action,
suit or other claim whatsoever that may be made as a result of such holder's
receipt of a distribution on account of such Subordinated Note under this Plan.
2. Holders of Allowed Class 6 Claims other than the
Subordinated Noteholder Claims. On the Effective Date, the Exchange Agent shall
distribute to each holder of an Effective Date Allowed Claim other than a
Subordinated Noteholder Claim its Class 6 Pro Rata Share of the Creditor Stock
Pool. Thereafter, on each Semi-Annual Distribution Date, distributions of a
holder's Pro Rata Share of the Creditor Stock Pool shall be made to each holder
of a Class 6 Claim other than a Subordinated Noteholder Claim whose Claim has
been Allowed (as certified by the Estate Representative to the Exchange Agent)
since the preceding Semi-Annual Distribution Date (or, with respect to the first
Semi-Annual Distribution Date, since the Effective Date). Final distributions of
Arch Common Shares shall be made on the Final Distribution Date to each holder
of an Allowed Class 6 Claim other than a Subordinated Noteholder Claim based on
its Class 6 Adjusted Pro Rata Share of any shares remaining in the Creditor
Stock Pool (subject to Section 2.8(C)(1)(f)).
3. Fractional Interests. The Arch Capital Shares
shall be issued and distributed in whole shares, and not in fractional shares.
To the extent that any holder would be entitled to a fractional Arch Capital
Share but for this provision, such holder shall, at Arch's option, (i) be paid
by Reorganized Communications cash in an amount equal to the fraction of said
share multiplied by the price of an Arch Capital Share on the Effective Date, or
(ii) receive the number of whole shares determined by rounding up to the next
whole number of shares. Arch Warrants shall be issued and distributed in whole
units, and not in fractional units. To the extent that any holder would be
entitled to a fractional Arch Warrant but for this provision, such holder
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shall receive the number of whole warrants determined by rounding up to the next
whole number of warrants. For purposes of this Section 4.3(D), holders of
Allowed Claims under or evidenced by the Notes shall, in the case of Notes held
in street name, mean the beneficial holders thereof.
E. Undeliverable Distributions.
1. Method of Distribution. All property under this
Plan to be distributed by mail shall be sent to the latest mailing address filed
of record with the Bankruptcy Court for the party entitled thereto or, if no
such mailing address has been so filed, the mailing address reflected in the
Schedules or, in the case of the holder of Notes, to the latest mailing address
maintained of record by the pertinent indenture trustee or, if no mailing
address is maintained of record, to the pertinent indenture trustee.
2. Holding and Investment of Undeliverable
Distributions. If any Allowed Claim holder's distribution is returned to the
Debtors, Reorganized Debtors, Arch or the Exchange Agent as undeliverable, no
further distributions will be made to such holder unless the Debtors,
Reorganized Debtors, Arch or the Exchange Agent, as applicable, are notified in
writing of such holder's then-current address. Undeliverable distributions will
remain in the possession of the Debtors, Reorganized Debtors, Arch or the
Exchange Agent, as applicable, pursuant to this Section 4.3(E)(2) until such
time as a distribution becomes deliverable. Undeliverable cash will be held in a
segregated bank account in the name of the Reorganized Debtors for the benefit
of the potential claimants of such funds and, until such time as such cash
becomes property of Arch pursuant to Section 4.3(E)(4), such cash will not
constitute property of Arch. The Reorganized Debtors will invest any
undeliverable cash in a manner consistent with the Reorganized Debtors'
investment and deposit practices. Undeliverable shares of newly-issued Arch
Common Shares will be held by the Exchange Agent for the benefit of the
potential claimants of such securities until the expiration of the time period
set forth in Section 4.3(E)(4).
3. After Distributions Become Deliverable. On each
Semi-Annual Distribution Date and on the Final Distribution Date, the Debtors,
Reorganized Debtors, Arch or the Exchange Agent, as applicable, will make all
distributions that have, prior to such date, become deliverable to holders of
Allowed Claims. Each such distribution will include, to the extent applicable,
dividends or other distributions, if any, that would have been paid in respect
of the shares of Arch Common Shares or Arch Class B Common Shares distributed to
such holder from the Effective Date through the date of such distribution
(without any interest thereon).
4. Undistributed Property. Any property that
remains undeliverable to the holders of Allowed Claims as of the later of the
Final Distribution Date and the date that is two years after the Effective Date
shall be delivered to, and become the property of, Arch.
F. Compliance with Tax Requirements.
1. In connection with this Plan, to the extent
applicable, the Reorganized Debtors will comply with all tax withholding and
reporting requirements imposed on
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them by any governmental unit, and all distributions pursuant to this Plan
that may be necessary or appropriate to comply with such withholding and
reporting requirements.
2. Notwithstanding any other provision of this
Plan, each entity that has received any distribution pursuant to this Plan will
have sole and exclusive responsibility for the satisfaction and payment of any
tax obligation imposed by any governmental unit, including income, withholding
and other tax obligations, on account of such distribution.
4.4 Procedure For Determination of Claims and Interests.
A. Bar Date For Administrative Claims.
1. All applications for compensation of
professional persons employed by the Debtors or the Committee pursuant to orders
entered by the Bankruptcy Court and on account of services rendered prior to the
Confirmation Date and all other requests for payment of administrative costs and
expenses incurred prior to the Confirmation Date pursuant to sections 507(a)(1)
or 503(b) of the Code (except for claims for taxes, trade debt and customer
deposits and credits incurred in the ordinary course of business after the
Petition Date) shall be served on the Reorganized Debtors, the DIP Agent, the
Pre-Petition Agent, the Committee and Arch, and filed with the Bankruptcy Court,
no later than 15 days after the Confirmation Date. Any such claim that is not
filed and served within this time shall be forever barred. Objections to any
such application must be filed within 15 days after receipt thereof; provided,
that Arch shall have no right to object to any such application for professional
fees. From and after the hearing on such applications, the Debtors (or the
Reorganized Debtors if the hearing is after the Effective Date) shall be
authorized to pay all of its and the Committee's professionals in full based on
monthly statements delivered to the Debtors subject to the final hearing
described in Section 4.4(A)(2).
2. All applications for final compensation of
professional persons employed by the Debtors or the Committee pursuant to orders
entered by the Bankruptcy Court and on account of services rendered on or after
the Confirmation Date and prior to the Effective Date and all other requests for
payment of administrative costs and expenses incurred on or after the
Confirmation Date and prior to the Effective Date pursuant to sections 507(a)(1)
or 503(b) of the Code (except for claims for taxes, trade debt and customer
deposits and credits incurred in the ordinary course of business after the
Petition Date) shall be served on the Reorganized Debtors, the DIP Agent, the
Pre-Petition Agent, the Committee and Arch, and filed with the Bankruptcy Court,
no later than 15 days after the Effective Date. Any such claim that is not
served and filed within this time shall be forever barred. Objections to any
such application must be filed within 15 days after receipt thereof; provided,
that Arch shall have no right to object to any such application for professional
fees.
B. Objections To Claims.
1. Objections to any Administrative Claim (other
than Administrative Claims governed by Section 4.4(A)) and to any other Claim
(other than Class 6
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Claims governed by the next sentence of this Section 4.4(B)(1)) must be filed no
later than the Effective Date. Objections must be filed no later than the Rights
Offering Commencement Date as to any Class 6 Claim other than Class 6 Claims
relating to the rejection of executory contracts or unexpired leases pursuant to
this Plan. Objections shall be served on the holder of any Claim being objected
to and counsel for each of Arch, the Pre-Petition Agent, the DIP Agent and the
Committee. No distribution shall be made on account of any Claim that is not
Allowed. To the extent any property is distributed to an entity on account of a
Claim that is not an Allowed Claim, such property shall be held in trust for and
shall promptly be returned to the Reorganized Debtors.
2. On and after the Effective Date, only the Estate
Representative shall have authority to continue to prosecute, settle or withdraw
objections to Claims. After the Effective Date, the Estate Representative shall
be entitled to compromise or settle any Disputed Claim without seeking approval
of the Bankruptcy Court. The Estate Representative shall be paid subject to the
budget described in Section 4.2(C)(5), but without seeking approval of the
Bankruptcy Court.
3. To the extent that a Disputed Claim ultimately
becomes an Allowed Claim, payments and distributions on account of such Allowed
Claim shall be made in accordance with the provisions of this Plan governing the
Class of Claims to which such Claim belongs. As soon as practicable after the
date that the order or judgment of the Bankruptcy Court allowing such Claim
becomes a Final Order, any property that would have been distributed prior to
the date on which a Disputed Claim becomes an Allowed Claim shall be
distributed, together with any dividends, payments or other distributions made
on account of such property from the date such distributions would have been due
had such Claim then been an Allowed Claim to the date such distributions are
made (without any interest thereon).
4.5 Issuance of Arch Capital Shares. On and as of the
Effective Date, Arch will issue the Arch Common Shares and, if applicable
pursuant to Section 4.3(C), Arch Class B Common Shares to be distributed to the
holders of Allowed Class 6 Claims, to all persons that exercised Rights and, if
applicable, the Standby Purchasers.
4.6 Issuance of Warrants. On and as of the Effective Date,
Arch will issue, as applicable, the Arch Warrants or the Arch Participation
Warrants, as contemplated by this Plan, the Rights, the Standby Purchase
Commitment and the Merger Agreement.
4.7 Issuance of Rights. On and as of the Rights Offering
Commencement Date, Arch will issue the Rights, as contemplated by this Plan and
the Merger Agreement. On and as of the Arch Stockholder Rights Offering
Commencement Date, Arch will issue the Arch Stockholder Rights.
4.8 Exemption from Securities Laws. All notes, instruments,
stock and other securities distributed pursuant to this Plan (other than the
Rights and the Units) are entitled to the benefits and exemptions provided by
section 1145 of the Code.
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4.9 Registration Rights Agreement. Each Person (other than the
Standby Purchasers) that, as a result of the transactions contemplated by this
Plan, becomes the beneficial owner (within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934) of at least 10% of the outstanding Arch
Capital Shares, shall be entitled to become a party to the Registration Rights
Agreement.
4.10 Effectuating Documents; Further Transactions; Exemption
From Certain Transfer Taxes. The Chief Executive Officer, President, Chief
Financial Officer or any Vice President of Reorganized Communications or the
Debtors, or such other persons as the Bankruptcy Court may designate at the
request of the Debtors, will be authorized to execute, deliver, file or record
such contracts, instruments, releases, indentures and other agreements or
documents and take such actions as may be necessary or appropriate to effectuate
and implement the provisions of this Plan. The Secretary or any Assistant
Secretary of each Debtor or the Reorganized Debtors or such other persons as the
Bankruptcy Court may designate at the request of the Debtors will be authorized
to certify or attest to any of the foregoing actions.
Pursuant to section 1146(c) of the Code (a) the issuance,
transfer or exchange of Arch Capital Shares, (b) the creation of any mortgage
deed or trust or other security interest and (c) the making of any agreement or
instrument in furtherance of, or in connection with, this Plan, including any
merger agreements, agreements of consolidation, restructuring, disposition,
liquidation or dissolution, deeds, bills of sale, or assignments executed in
connection with the Merger Agreement, will not be subject to any stamp, real
estate transfer tax or similar tax.
4.11 Release of Security Interests. Within ten Business Days
after the Confirmation Date, the Pre-Petition Agent shall deliver to
Communications UCC-3 termination statements and such other documents as are
reasonably requested by Communications to evidence the termination of the
security interests granted to the Pre-Petition Agent to secure amounts
outstanding under the 1995 Credit Agreement, which statements and other
documents shall be held by Communications in escrow and released for filing only
upon receipt by the Pre-Petition Agent of the distribution provided for in
Section 4.3(A).
ARTICLE V
CONDITIONS TO EFFECTIVE DATE
5.1 Conditions to Occurrence of Effective Date. Each of the
following is a condition to the Effective Date:
A. That the Confirmation Order has been entered by
the Bankruptcy Court, more than ten (10) days have elapsed since the
Confirmation Date, no stay of the Confirmation Order is in effect and the
Confirmation Order has not been reversed, modified or vacated;
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B. That all conditions to the Closing under the
Merger Agreement (other than the condition set forth in Section 5.1(j) of the
Merger Agreement) have been satisfied or waived by the party entitled thereto,
and the Merger shall occur as contemplated by Section 4.2(B)(ii); and
C. The commitments under the DIP Credit Agreement
shall have terminated, all amounts owing under or in respect of the DIP Credit
Agreement shall have been paid in full in cash and any outstanding letters of
credit issued under and in connection with the DIP Credit Agreement or the 1995
Credit Agreement shall have been terminated or satisfied, or the Debtors shall
have provided cash collateral therefor in accordance with the terms of the DIP
Credit Agreement or the 1995 Credit Agreement, as applicable.
5.2 Effect of Non-occurrence of Conditions to the Effective
Date. If the Merger Agreement is terminated in accordance with its terms, then
the Confirmation Order shall be vacated by the Bankruptcy Court unless the
Debtors, Arch or the Committee files a motion opposing the vacation of the
Confirmation Order within ten Business Days after termination of the Merger
Agreement. The Confirmation Order may not be vacated after all the conditions to
the Effective Date have either occurred or been waived.
5.3 Non-consensual Confirmation. Because Classes 7, 8 and 9
are deemed not to have accepted this Plan pursuant to section 1126(g) of the
Code, as to such Classes and any other Class that votes to reject this Plan, the
Debtors are seeking confirmation of this Plan in accordance with section 1129(b)
of the Code either under the terms provided herein or upon such terms as may
exist if this Plan is modified in accordance with section 1127(d) of the Code.
In the event Class 4 votes to reject this Plan, the Debtors, the Committee and
Arch each reserves the right to contest all or any portion of the amount of the
Allowed Class 4 Claims as set forth in Section 2.6(B).
ARTICLE VI
DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS
6.1 Discharge of Claims and Termination of Interests.
A. Except as provided in the Confirmation Order,
the rights afforded under this Plan and the treatment of Claims and Interests
under this Plan will be in exchange for and in complete satisfaction, discharge
and release of all Claims and satisfaction or termination of all Interests,
including any interest accrued on Claims from the Petition Date. Except as
provided in this Plan or the Confirmation Order, Confirmation will, as of the
Effective Date: (i) discharge the Debtors from all Claims or other debts that
arose before the Effective Date, and all debts of the kind specified in sections
502(g), 502(h) or 502(i) of the Code, whether or not (x) a proof of claim based
on such debt is filed or deemed filed pursuant to section 501 of the Code, (y) a
Claim based on such debt is allowed pursuant to section 502 of the Code, or (z)
the holder of a Claim based on such debt has accepted this Plan and (ii) satisfy
or terminate all Interests and other rights of equity security holders in the
Debtors.
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B. As of the Effective Date, except as provided in
this Plan or the Confirmation Order, all entities will be precluded from
asserting against the Debtors or the Reorganized Debtors, or their respective
successors or property, any other or further Claims, demands, debts, rights,
causes of action, liabilities or equity interests based upon any act, omission,
transaction or other activity of any kind or nature that occurred prior to the
Effective Date. In accordance with the foregoing, except as provided in this
Plan or the Confirmation Order, the Confirmation Order will be a judicial
determination, as of the Effective Date, of discharge of all such Claims and
other debts and liabilities against the Debtors and satisfaction or termination
of all Interests and other rights of equity security holders in the Debtors,
pursuant to sections 524 and 1141 of the Bankruptcy Code, and such discharge
will void any judgment obtained against the Debtors or the Reorganized Debtors
at any time, to the extent that such judgment relates to a discharged Claim.
6.2 Injunctions.
A. Except as provided in this Plan or the
Confirmation Order, as of the Effective Date, all entities that have held,
currently hold or may hold a Claim or other debt or liability that is discharged
or an Interest or other right of an equity security holder that is terminated
pursuant to the terms of this Plan are permanently enjoined from taking any of
the following actions on account of any such discharged Claims, debts or
liabilities or terminated Interests or rights: (i) commencing or continuing in
any manner any action or other proceeding against the Debtors or the Reorganized
Debtors or Arch or its subsidiaries or their respective property; (ii)
enforcing, attaching, collecting or recovering in any manner any judgment,
award, decree or order against the Debtors or the Reorganized Debtors or Arch or
its subsidiaries or their respective property; (iii) creating, perfecting or
enforcing any lien or encumbrance against the Debtors or the Reorganized Debtors
or Arch or its subsidiaries or their respective property; (iv) asserting a
setoff, right of subrogation or recoupment of any kind against any debt,
liability or obligation due to the Debtors or the Reorganized Debtors or Arch or
its subsidiaries or their respective property; and (v) commencing or continuing
any action, in any manner, in any place that does not comply with or is
inconsistent with the provisions of this Plan.
B. As of the Effective Date, all entities that have
held, currently hold or may hold a claim, demand, debt, right, cause of action
or liability that is released pursuant to this Plan are permanently enjoined
from taking any of the following actions on account of such released claims,
demands, debts, rights, causes of action or liabilities: (i) commencing or
continuing in any manner any action or other proceeding; (ii) enforcing,
attaching, collecting or recovering in any manner any judgment, award, decree or
order; (iii) creating, perfecting or enforcing any lien or encumbrance; (iv)
asserting a setoff, right of subrogation or recoupment of any kind against any
debt, liability or obligation due to any released entity; and (v) commencing or
continuing any action, in any manner, in any place that does not comply with or
is inconsistent with the provisions of this Plan.
C. By accepting a distribution pursuant to this
Plan, each holder of an Allowed Claim receiving such distribution pursuant to
this Plan will be deemed to have specifically consented to the injunctions set
forth in this Section 6.2.
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6.3 Termination of Subordination Rights and Settlement of
Related Claims and Controversies.
A. The classification and manner of satisfying all
Claims and Interests under this Plan takes into consideration all contractual,
legal and equitable subordination and turnover rights, whether arising under
general principles of equitable subordination, section 510(c) of the Code or
otherwise, that a holder of a Claim or Interest or the Debtors may have against
other Claim holders with respect to any distribution made pursuant to this Plan.
On the Effective Date, all contractual, legal, equitable subordination and
turnover rights that a holder of a Claim or Interest or the Debtors may have
with respect to any distribution to be made pursuant to this Plan will be
discharged and terminated, and all actions related to the enforcement of such
subordination rights will be permanently enjoined. Accordingly, distributions
pursuant to this Plan to holders of Allowed Claims will not be subject to
payment to a beneficiary of such terminated subordination rights, or to levy,
garnishment, attachment or other legal process by a beneficiary of such
terminated subordination rights.
B. Pursuant to Bankruptcy Rule 9019 and in
consideration for the distributions and other benefits provided under this Plan,
the provisions of this Plan will constitute a good faith compromise and
settlement of all claims or controversies relating to the enforcement or
termination of all contractual, legal and equitable subordination and turnover
rights that a holder of a Claim or Interest or the Debtors may have with respect
to any Allowed Claim or Interest, or any distribution to be made pursuant to
this Plan on account of such Claim. The entry of the Confirmation Order will
constitute the Bankruptcy Court's approval of the compromise or settlement of
all such claims or controversies and the Bankruptcy Court's finding that such
compromise or settlement is in the best interests of the Debtors and the
Reorganized Debtors and their respective property and Claim and Interest
holders, and is fair, equitable and reasonable.
ARTICLE VII
MISCELLANEOUS
7.1 Retention of Jurisdiction. Following the Effective Date,
the Bankruptcy Court shall retain such jurisdiction as is set forth in this
Plan. Without in any manner limiting the scope of the foregoing, the Bankruptcy
Court shall retain jurisdiction for the following purposes:
A. To determine the allowability, classification,
priority or subordination of Claims and Interests upon objection, or to
estimate, pursuant to section 502(c) of the Code, the amount of any Claim that
is or is anticipated to be contingent or unliquidated as of the Effective Date,
or to hear proceedings to subordinate Claims or Interests brought by any party
in interest with standing to bring such objection or proceeding;
B. To construe and to take any action authorized by
the Code and requested by the Reorganized Debtors or any other party in interest
to enforce this Plan and the documents and agreements filed in connection with
this Plan, issue such orders as may be necessary for the implementation,
execution and consummation of this Plan, including, without
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limiting the generality of the foregoing, orders to expedite regulatory
decisions for the implementation of this Plan and to ensure conformity with the
terms and conditions of this Plan, such documents and agreements and other
orders of the Bankruptcy Court, notwithstanding any otherwise applicable
non-bankruptcy law;
C. To determine any and all applications for
allowance of compensation and expense reimbursement of professionals retained by
the Debtors, the Reorganized Debtors or the Committee, and for members of the
Committee, for periods on or before the Effective Date, and to determine any
other request for payment of administrative expenses;
D. To determine all matters that may be pending
before the Bankruptcy Court on or before the Effective Date;
E. To resolve any dispute regarding the
implementation or interpretation of this Plan, the Merger Agreement or any
related agreement or document that arises at any time before the Cases are
closed, including determination, to the extent a dispute arises, of the entities
entitled to a distribution within any particular Class of Claims and of the
scope and nature of the Reorganized Debtors' obligations to cure defaults under
assumed contracts, leases, franchises and permits;
F. To determine any and all applications pending on
the Confirmation Date for the rejection, assumption or assignment of executory
contracts or unexpired leases entered into prior to the Petition Date, and the
allowance of any Claim resulting therefrom;
G. To determine all applications, adversary
proceedings, contested matters and other litigated matters that were brought or
that could have been brought on or before the Effective Date;
H. To determine matters concerning local, state and
federal taxes in accordance with sections 346, 505 and 1146 of the Code, and to
determine any tax claims that may arise against the Debtors or Reorganized
Debtors as a result of the transactions contemplated by this Plan;
I. To resolve any dispute arising out of actions
taken by the Estate Representative;
J. To modify this Plan pursuant to section 1127 of
the Code, or to remedy any apparent nonmaterial defect or omission in this Plan,
or to reconcile any nonmaterial inconsistency in this Plan so as to carry out
its intent and purposes; and
K. For such other purposes as may be provided for
in the Confirmation Order.
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Prior to the Effective Date, the Bankruptcy Court shall
retain jurisdiction with respect to each of the foregoing items and all other
matters that were subject to its jurisdiction prior to the Confirmation Date.
7.2 Retention and Enforcement Of Causes Of Action. Pursuant
to section 1123(b)(3)(B) of the Code, but subject to Sections 7.3 and 7.4 of
this Plan, the Reorganized Debtors, on behalf of themselves and holders of
Allowed Claims and Interests, shall retain all Causes of Action that the Debtors
had or had power to assert immediately prior to the Effective Date, and may
commence or continue in any appropriate court or tribunal any suit or other
proceeding for the enforcement of such Causes of Action. All Causes of Action
shall remain the property of the Reorganized Debtors. Nothing contained in this
Plan shall constitute a waiver of the rights, if any, of the Debtors or the
Reorganized Debtors to a jury trial with respect to any Cause of Action or
objection to any Claim or Interest.
7.3 Limitation of Liability. None of the Debtors, the
Reorganized Debtors, Arch or any affiliate thereof, the Committee, the
Pre-Petition Agent, the Pre-Petition Lenders, the DIP Agent, the DIP Lenders,
the Standby Purchasers, the indenture trustees for the Notes, Arch's financing
sources, nor any of their respective officers, directors, employees, members,
agents, underwriters or investment bankers, nor any other professional Persons
employed by any of them (collectively, the "Exculpated Persons"), shall have or
incur any liability to any Person for any act taken or omission made in good
faith in connection with or related to formulating, negotiating, implementing,
confirming or consummating this Plan, the Disclosure Statement or any contract,
instrument, release or other agreement or document created in connection with
this Plan. The Exculpated Persons shall have no liability to any Debtor, holder
of a Claim, holder of an Interest, other party in interest in the Cases or any
other Person for actions taken or not taken under this Plan, in connection
herewith or with respect hereto, or arising out of their administration of this
Plan or the property to be distributed under this Plan, in good faith,
including, without limitation, failure to obtain Confirmation of this Plan or to
satisfy any condition or conditions, or refusal to waive any condition or
conditions, to the occurrence of the Effective Date, and in all respects such
Exculpated Persons shall be entitled to rely upon the advice of counsel with
respect to their duties and responsibilities under this Plan.
7.4 Releases.
A. On the Effective Date, the Reorganized Debtors,
on their own behalf and as representatives of the Debtors' estates, in
consideration of services rendered in the Cases and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
release unconditionally, and are deemed to release unconditionally, each of the
Debtors' (1) present officers and directors, (2) former officers and directors
(other than those former officers and directors considered or determined as of
the Effective Date by the FCC to be alleged or actual wrongdoers for purposes of
the FCC Proceeding), (3) the entities that elected such directors to the extent
they are or may be liable for the actions or inactions of such directors and (4)
their respective professional advisers (collectively, the "Officer and Director
Releasees"), from any and all claims, obligations, suits, judgments, damages,
rights, causes of action and liabilities whatsoever (including, without
limitation, those arising under the Code), whether known
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or unknown, foreseen or unforeseen, existing or hereafter arising, in law,
equity or otherwise, based in whole or in part on any act, omission,
transaction, event or other occurrence taking place before, on or after the
Petition Date up to the Effective Date, in any way relating to the Debtors
(before, on or after the Petition Date), the Cases or this Plan (collectively,
the "Released Matters"); provided, that the foregoing release shall not apply to
any action or omission that constitutes actual fraud or criminal behavior; and
provided, further, that such release shall not be granted to any Officer or
Director Releasee who has a Disputed Claim as of the Effective Date.
B. On the Effective Date, the Reorganized Debtors,
on their own behalf and as representatives of the Debtors' estates, in
consideration of services rendered in the Cases and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
release unconditionally, and are deemed to release unconditionally, each of (1)
the Pre-Petition Lenders, the Pre-Petition Agent, the DIP Lenders and the DIP
Agent and (2) their respective professional advisers (collectively, the "Lender
Releasees"), from the Released Matters; provided, that the foregoing release
shall not apply to any action or omission that constitutes actual fraud or
criminal behavior.
C. On the Effective Date, the Reorganized Debtors,
on their own behalf and as representatives of the Debtors' estates, in
consideration of services rendered in the Cases and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
release unconditionally, and are deemed to release unconditionally, (1) each
member of the Committee, the Committee and their respective present or former
members, officers, directors, employees, affiliates, advisors, attorneys or
agents (collectively, the "Representatives"), (2) the Standby Purchasers and
their Representatives, and (3) their respective professional advisers
(collectively, the "Creditor Releasees"), from the Released Matters; provided,
that the foregoing release shall not apply to any action or omission that
constitutes actual fraud or criminal behavior.
D. On the Effective Date, the Reorganized Debtors,
on their own behalf and as representatives of the Debtors' estates, in
consideration of services rendered in the Cases and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
release unconditionally, and are deemed to release unconditionally, Arch, any
affiliate of Arch, or Arch's financing sources, agents, underwriters and
investment bankers and their respective professional advisers (collectively, the
"Arch Releasees") from the Released Matters; provided, that the foregoing
release shall not apply to any action or omission that constitutes actual fraud
or criminal behavior.
E. On the Effective Date, Arch and its subsidiaries
shall be deemed to have unconditionally released the Officer and Director
Releasees, the Lender Releasees and the Creditor Releasees from the Released
Matters; provided, that the foregoing release shall not apply to any action or
omission that constitutes actual fraud or criminal behavior; and provided,
further, that such release shall not be granted to any Officer or Director
Releasee who has a Disputed Claim as of the Effective Date.
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F. On the Effective Date, each holder of a Claim
that is entitled to vote on this Plan shall be deemed to have unconditionally
released the Officer and Director Releasees, the Lender Releasees, the Creditor
Releasees and the Arch Releasees from the Released Matters; provided, that the
foregoing release shall not apply to any action or omission that constitutes
actual fraud or criminal behavior and shall not constitute a release of any
recovery such holder would be entitled to as a plaintiff or putative plaintiff
in the Securities Actions or any action initiated after the date hereof based
upon similar factual allegations or alleging similar causes of action to the
Securities Actions; and provided, further, that a holder (other than Arch) may
elect, by checking the appropriate box or boxes provided on the Ballot, not to
grant such release as to the Officer and Director Releasees, the Lender
Releasees, the Creditor
Releasees or the Arch Releasees, or all of them.
G. The Confirmation Order shall contain a
permanent injunction to effectuate the releases granted in the foregoing
Sections 7.4(A), (B), (C), (D), (E) and (F). Any release granted pursuant to the
foregoing Sections 7.4(A), (B), (C), (D), (E) and (F) shall be ineffective and
null and void automatically and immediately upon the assertion by any released
party of any claim in any manner or in any forum against any party that granted
the release, and all Causes of Action that the Debtors had or had the power to
assert immediately prior to the Effective Date with respect to any such party
shall be preserved and become the property of the Reorganized Debtors pursuant
to Section 7.2.
7.5 Indemnification Obligations; Directors' and Officers'
Liability Insurance.
A. Director Indemnification Obligations and
Excluded Indemnification Obligations shall be deemed to be, and shall be treated
as if they are, executory contracts that are rejected pursuant to section 365 of
the Code. Any Claims arising out of the rejection of the Indemnification
Obligations pursuant to this Section 7.5(A) shall be subordinated in full under
sections 510(b) and 510(c) of the Code.
B. Benefit Plan Indemnification Obligations and
Indemnification Obligations with respect to officers and employees who are
officers and employees of the Debtors as of the Effective Date (other than
Excluded Indemnification Obligations) shall be deemed to be, and shall be
treated as though they are, executory contracts that are assumed agreements
under this Plan and such obligations (subject to any defenses thereto) shall
remain unaffected and shall not be discharged or impaired hereby, and any Claim
for indemnification filed by any such party shall not be an Allowed Claim
hereunder; provided, that the foregoing assumption shall not affect any release
of any such obligation given in writing to the Debtors before the Effective Date
or to the Reorganized Debtors on or after the Effective Date or any other
releases under Section 7.4.
C. On the Effective Date, the Reorganized Debtors
shall purchase a "run-off" policy for the Debtors' current and former directors
and officers (other than those former officers and directors considered or
determined as of the Effective Date by the FCC to be alleged or actual
wrongdoers for purposes of the FCC Proceeding), which policy shall provide for
aggregate coverage up to $40 million (or such lesser amount as can be purchased
for a premium of $750,000) for claims made during a period of at least three (3)
years following the Effective
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Date based on alleged "wrongful acts" through the Effective Date, and shall
contain such other usual and customary terms and conditions as are approved by
the Board of Directors of MobileMedia.
D. As of the Effective Date, Arch shall make
available up to an aggregate amount of $1,000,000 (the "Defense Fund") to be
used by present and former officers and directors (other than those former
officers and directors considered or determined as of the Effective Date by the
FCC to be alleged or actual wrongdoers for purposes of the FCC Proceeding) of
the Debtors solely for the costs and expenses (including reasonable attorneys'
fees and expenses) of defending the Securities Actions not otherwise covered by
the Debtors' insurance. The Defense Fund is being provided by Arch at its
election and not in exchange for any Claim or Interest by any officer or
director. Provision of the Defense Fund hereunder shall not negate, constitute a
waiver or modification of or otherwise impair the discharge of the Debtors and
the Reorganized Debtors under sections 524 and 1141 of the Code and this Plan.
As a condition to any officer or director obtaining amounts from the Defense
Fund, such officer or director shall deliver to Arch, at Arch's request, a
release, in form and substance reasonably acceptable to Arch, confirming the
unconditional release and discharge of the Arch Releasees and the Reorganized
Debtors from the Released Matters. Any officer or director shall be required to
reimburse Arch for any amounts obtained from the Defense Fund that are
subsequently covered by insurance.
7.6 Terms Binding. Upon the entry of the Confirmation Order,
all provisions of this Plan, including all agreements, instruments and other
documents filed in connection with this Plan and executed by the Debtors, Arch
or the Reorganized Debtors in connection with this Plan, shall be binding upon
the Debtors, Arch, the Reorganized Debtors, all Claim and Interest holders and
all other entities that are affected in any manner by this Plan. All agreements,
instruments and other documents filed in connection with this Plan shall have
full force and effect, and shall bind all parties thereto as of the entry of the
Confirmation Order, whether or not such exhibits actually shall be executed by
parties other than the Debtors or the Reorganized Debtors, or shall be issued,
delivered or recorded on the Effective Date or thereafter.
7.7 Additional Terms of Securities and Other Instruments. Any
modification of the Merger Agreement, the Arch Warrants, Arch Common Shares and
Arch Class B Common Shares, and all other securities or agreements issued or
entered into pursuant to this Plan after the Voting Deadline, shall be treated
as a Plan modification and shall be governed by section 1127 of the Code.
7.8 Post-Consummation Effect of Evidences of Claims or
Interests. Notes, stock certificates and other evidence of Claims against or
Interests in the Debtors shall, effective on the Effective Date, represent only
the right to participate in the distributions contemplated by this Plan.
7.9 Payment Dates. Whenever any payment to be made under this
Plan is due on a day other than a Business Day, such payment shall instead be
made, without interest, on the next succeeding Business Day.
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7.10 Successors and Assigns. The rights, benefits and
obligations of any person named or referred to in this Plan shall be binding
upon, and shall inure to the benefit of, the heir, executor, administrator,
successor or assignee of such person.
7.11 Inconsistencies. In the event that there is any
inconsistency between this Plan and the Disclosure Statement, any exhibit to
this Plan or any other instrument or document created or executed pursuant to
this Plan, this Plan shall govern.
7.12 Compliance with Applicable Law. It is intended that the
provisions of this Plan (including the implementation thereof) shall be in
compliance with applicable law, including, without limitation, the Code, the
Delaware General Corporation Law, as amended, the Communications Act of 1934, as
amended, the Securities Act of 1933, as amended, and the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, as well as, in each case, any
rules and regulations promulgated thereunder. If the Debtors shall conclude that
this Plan may not comply with any of the foregoing, then and in such event the
Debtors intend to amend this Plan in such respects as they deem necessary to
bring this Plan into compliance therewith.
7.13 Governing Law. Except to the extent that the Code or any
other federal law is applicable or to the extent the law of a different
jurisdiction is validly elected by the Debtors, the rights, duties and
obligations arising under this Plan shall be governed in accordance with the
substantive laws of the United States of America and, to the extent federal law
is not applicable, the laws of the State of Delaware.
7.14 Severability. If the Bankruptcy Court determines at the
Confirmation Hearing that any material provision of this Plan is invalid or
unenforceable, such provision, to the extent the Debtors, Arch and the Committee
agree, but subject to section 1127 of the Code, shall be severable from this
Plan and null and void, and, in such event, such determination shall in no way
limit or affect the enforceability or operative effect of any or all other
portions of this Plan.
7.15 Incorporation by Reference. Each Exhibit or Schedule
hereto is incorporated herein by reference.
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MOBILEMEDIA COMMUNICATIONS, INC.
MOBILEMEDIA CORPORATION
MOBILEMEDIA COMMUNICATIONS, INC. (CALIFORNIA)
MOBILEMEDIA DP PROPERTIES, INC.
MOBILEMEDIA PCS, INC.
DIAL PAGE SOUTHEAST, INC.
RADIO CALL COMPANY OF VA. INC.
MOBILEMEDIA PAGING, INC.
MOBILE COMMUNICATIONS CORPORATION OF AMERICA
MOBILECOMM OF THE SOUTHEAST, INC.
MOBILECOMM OF THE NORTHEAST, INC.
MOBILECOMM NATIONWIDE OPERATIONS, INC.
MOBILECOMM OF TENNESSEE, INC.
MOBILECOMM OF THE SOUTHEAST PRIVATE CARRIER
OPERATIONS, INC.
MOBILECOMM OF THE SOUTHWEST, INC.
MOBILECOMM OF FLORIDA, INC.
MOBILECOMM OF THE MIDSOUTH, INC.
FWS RADIO, INC.
MOBILECOMM OF THE WEST, INC.
Debtors and Debtors-in-Possession
By:
-----------------------------------------
Xxxxxx X. Xxxxx
Chairman-Restructuring of
MobileMedia Corporation
-43-
J. Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxx X. Xxxxx
XXXXXX & XXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Xxxxx X. Xxxxxx, Xx. (No. 2202)
Xxxx X. Xxxxx (No. 2925)
YOUNG XXXXXXX STARGATT & XXXXXX, LLP
11th Floor - Xxxxxx Square North
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
COUNSEL TO DEBTORS AND DEBTORS-IN-POSSESSION
-44-
TABLE OF CONTENTS
Page
INTRODUCTION..................................................................................1
ARTICLE I
DEFINITIONS; INTERPRETATION...................................................................1
1.1 Definitions..................................................................1
1.2 Interpretation..............................................................14
1.3 Computation of Time.........................................................14
ARTICLE II
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS.........................................14
2.1 Administrative Claims.......................................................15
2.2 Priority Tax Claims.........................................................15
2.3 Class 1 Claims (Priority Claims)............................................16
2.4 Class 2 Claims (Miscellaneous Secured Claims)...............................16
2.5 Class 3 Claims (Customer Refund Claims).....................................16
2.6 Class 4 Claims (Claims arising under or related to the 1995 Credit
Agreement)..................................................................17
2.7 Class 5 Claims (Claims arising under or related to the Dial Page Notes).....17
2.8 Class 6 Claims (Non-Priority Unsecured Claims)..............................18
2.9 Class 7 Claims (Note Litigation Claims).....................................20
2.10 Class 8 Claims and Interests (Common Stock Claims and Interests and
Subordinated Indemnification Obligation Claims).............................20
2.11 Class 9 Claims and Interests (Subsidiary Claims and Interests)..............21
ARTICLE III
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES........................................21
3.1 Rejection...................................................................21
3.2 Assumption..................................................................21
3.3 Post-Petition Contracts and Leases..........................................22
ARTICLE IV
IMPLEMENTATION OF PLAN.......................................................................23
4.1 Actions Occurring Prior to the Effective Date...............................23
4.2 Actions Occurring on the Effective Date.....................................24
4.3 Distributions Occurring On and After the Effective Date.....................26
4.4 Procedure For Determination of Claims and Interests.........................31
4.5 Issuance of Arch Capital Shares.............................................32
4.6 Issuance of Warrants........................................................32
4.7 Issuance of Rights..........................................................32
4.8 Exemption from Securities Laws..............................................32
-1-
4.9 Registration Rights Agreement...............................................33
4.10 Effectuating Documents; Further Transactions; Exemption From Certain
Transfer Taxes..............................................................33
4.11 Release of Security Interests...............................................33
ARTICLE V
CONDITIONS TO EFFECTIVE DATE................................................................33
5.1 Conditions to Occurrence of Effective Date..................................33
5.2 Effect of Non-occurrence of Conditions to the Effective Date................34
5.3 Non-consensual Confirmation.................................................34
ARTICLE VI
DISCHARGE, TERMINATION, INJUNCTION AND SUBORDINATION RIGHTS.................................34
6.1 Discharge of Claims and Termination of Interests............................34
6.2 Injunctions.................................................................35
6.3 Termination of Subordination Rights and Settlement of Related Claims and
Controversies...............................................................36
ARTICLE VII
MISCELLANEOUS...............................................................................36
7.1 Retention of Jurisdiction...................................................36
7.2 Retention and Enforcement Of Causes Of Action...............................38
7.3 Limitation of Liability.....................................................38
7.4 Releases....................................................................38
7.5 Indemnification Obligations; Directors' and Officers' Liability Insurance...40
7.6 Terms Binding...............................................................41
7.7 Additional Terms of Securities and Other Instruments........................41
7.8 Post-Consummation Effect of Evidences of Claims or Interests................41
7.9 Payment Dates...............................................................41
7.10 Successors and Assigns......................................................42
7.11 Inconsistencies.............................................................42
7.12 Compliance with Applicable Law..............................................42
7.13 Governing Law...............................................................42
7.14 Severability................................................................42
7.15 Incorporation by Reference..................................................42
Exhibit A Registration Rights Agreement
(10% Holders)
Exhibits B-1 through B-4 Standby Purchase Commitment
Schedule 1 Assumed Employment and Benefit
Agreements
EXHIBIT B-1
[Form for Buyer Participation Warrants]
================================================================================
WARRANT AGREEMENT
between
ARCH COMMUNICATIONS
GROUP, INC.
and
THE BANK OF NEW YORK
_________, 199__
================================================================================
WARRANT AGREEMENT
This WARRANT AGREEMENT, dated as of ___________, 199__ (the
"Agreement"), is made and entered into by and between Arch Communications Group,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a
_______________________, as warrant agent (the "Warrant Agent").
RECITALS
WHEREAS, a plan of reorganization under Chapter 11 of the United States
Bankruptcy Code for MobileMedia Communications, Inc. ("MobileMedia"),
MobileMedia Corporation, the sole stockholder of MobileMedia ("Parent"), and all
of MobileMedia's subsidiaries (the "Plan") was confirmed on ________, 199_ by
order of the United States Bankruptcy Court for the District of Delaware in Case
Nos. 00-000 (XXX) through and including 97-192 (PJW), and has become effective;
WHEREAS, in connection with the Plan, the Company, a wholly owned
subsidiary of the Company ("Merger Sub"), Parent and MobileMedia entered into an
Agreement and Plan of Merger, dated as of August ___, 1998 (the "Merger
Agreement"), pursuant to which MobileMedia has been merged with and into Merger
Sub, with Merger Sub continuing as the surviving corporation and a wholly owned
subsidiary of the Company;
WHEREAS, the Plan and the Merger Agreement provide for the execution and
delivery of this Agreement by the Company and the issuance of warrants (the
"Warrants"), each Warrant initially representing the right to purchase one share
of Common Stock (as defined in Section 4.1(h)), on the terms and subject to the
conditions herein set forth; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance of Warrant Certificates (as defined in Section 1.2) and other matters
as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the parties hereto hereby agree as follows:
1. Issuance of Warrants; Form of Warrants.
1.1. Issuance of Warrants. On the terms and subject to the conditions
set forth in the Plan and the Merger Agreement, the Company will issue and
deliver: (a) an aggregate of __________ Warrants as contemplated by the Standby
Purchase Commitments (as defined in the Plan) as consideration for the
commitments set forth therein and (b) an aggregate of __________ Warrants
pursuant to the Buyer Distribution (as defined in the Merger Agreement) as
provided in Section 1.7(b) of the Merger Agreement. The shares of Common Stock
purchasable upon exercise of the Warrants are hereinafter referred to as the
"Warrant Shares." The purchase price per Warrant Share payable upon the exercise
of a Warrant (the "Warrant Price") will initially be
$____*. The Warrant Price and the number and kind of Warrant Shares purchasable
upon exercise of the Warrants are subject to adjustment pursuant to the
provisions of Section 4.
1.2. Form of Warrants. Each Warrant, including without limitation any
Warrants that may be issued upon partial exercise, replacement, or transfer of
Warrants, will be evidenced by, and subject to the terms of, a Warrant
certificate (including the Form of Exercise Notice and Form of Assignment to be
printed on the reverse thereof, a "Warrant Certificate") in substantially the
form of Exhibit A, with such changes, marks of identification or designation,
and such legends, summaries, or endorsements printed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto. Notwithstanding the foregoing, Warrant
Certificates evidencing Warrants issued as contemplated by clause (a) or clause
(b) of the first sentence of Section 1.1 will not bear restrictive legends.
1.3. Countersignature of Warrants. The Warrant Certificates will be
executed on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board, President, or any Vice President, and attested by its
Secretary or any Assistant Secretary. The Warrant Certificates will be manually
countersigned by the Warrant Agent and will not be valid for any purpose unless
so countersigned. In case any officer of the Company who has signed any of the
Warrant Certificates ceases to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, and issued and delivered by the Company with the same force and effect as
though the person who signed such Warrant Certificates had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, is a proper officer of the Company to sign such Warrant
Certificate, although on any other date such person was not such an officer.
Warrant Certificates will be dated the date of countersignature by the Warrant
Agent.
1.4 Registration of Warrants. The Warrant Agent, on behalf of the
Company, will keep or cause to be kept, at the principal office of the Warrant
Agent designated for such purpose, books for registration and transfer of the
Warrant Certificates issued hereunder by the Company. Such books will show the
names and addresses of the respective holders of the Warrant Certificates, the
number of Warrants evidenced on its face by each of the Warrant Certificates,
and the date of each of the Warrant Certificates. The Company and the Warrant
Agent will be entitled to treat the registered holder of any Warrant Certificate
(the "Holder") as the sole owner of the Warrants represented by such Warrant
Certificate for all purposes and will not be bound to recognize any equitable or
other claim or interest in such Warrants on the part of any other person.
Neither the Company nor the Warrant Agent will be liable for any registration of
transfer of any Warrants that are registered or to be registered in the name of
a fiduciary or the nominee of a fiduciary.
--------
*To be determined as provided in Schedule II to the Merger Agreement.
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2. Transfer and Exchange of Warrants.
2.1. Transfer and Exchange. Any Warrant Certificate may, except to the
extent otherwise prohibited pursuant to this Agreement, be transferred, split
up, combined, or exchanged for another Warrant Certificate or Warrant
Certificates entitling the Holder thereof to purchase a like aggregate number of
Warrant Shares as the Warrant Certificate or Warrant Certificates surrendered
then entitled such Holder (or former Holder in the case of a transfer) to
purchase. Any Holder desiring to transfer, split up, combine, or exchange any
such Warrant Certificate will make such request in writing delivered to the
Warrant Agent, and will surrender the Warrant Certificate or Warrant
Certificates to be transferred, split up, combined, or exchanged, with the Form
of Assignment duly executed by the Holder thereof, at the principal office of
the Warrant Agent designated for such purpose. Thereupon or as promptly as
practicable thereafter, the Company will prepare, execute, and deliver to the
Warrant Agent, and the Warrant Agent will countersign and deliver, a Warrant
Certificate or Warrant Certificates, as the case may be, as so requested.
Neither the Company nor the Warrant Agent will be required to issue or deliver
any Warrant Certificates in connection with any transfer, split up, combination,
or exchange of Warrants or Warrant Certificates unless and until the person or
persons requesting the issuance or delivery thereof has paid to the Warrant
Agent the amount of any tax or governmental charge that may be payable in
connection with such transfer, split up, combination, or exchange or has
established to the satisfaction of the Warrant Agent that any tax or
governmental charge has been paid. Holders will not be required to pay any other
charge in connection with the transfer, split up, combination, or exchange of
Warrants.
2.2. Lost, Stolen, and Mutilated Warrant Certificates. Upon receipt by
the Company and the Warrant Agent of evidence reasonably satisfactory to them of
the loss, theft, destruction, or mutilation of a Warrant Certificate, and, in
case of loss, theft, or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the Warrant Agent of
all reasonable expenses incidental thereto, and upon surrender to the Warrant
Agent and cancellation of the Warrant Certificate if mutilated, the Company will
prepare, execute, and deliver a new Warrant Certificate of like tenor to the
Warrant Agent and the Warrant Agent will countersign and deliver such new
Warrant Certificate to the Holder in lieu of the Warrant Certificate so lost,
stolen, destroyed, or mutilated.
2.3. Payment of Taxes. The Company will pay all documentary or stamp
taxes, if any, attributable to the initial issuance of the Warrants and the
initial issuance of the Warrant Shares upon the exercise of Warrants; provided,
however, that the Company's obligations in this regard will in all events be
conditioned upon the Holder cooperating with the Company and the Warrant Agent
in any reasonable arrangement designed to minimize or eliminate any such taxes.
Neither the Company nor the Warrant Agent will be required to pay any tax or
governmental charge that may be payable in connection with any transfer, split
up, combination, or exchange of Warrants or Warrant Certificates, and the
Company will not be required to issue or deliver such Warrant Certificates
unless or until the person or persons requesting the issuance thereof has paid
to the
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Company the amount of such tax or governmental charge or has established to the
satisfaction of the Company that such tax or governmental charge has been paid.
2.4. Cancellation and Destruction of Warrant Certificates. All Warrant
Certificates surrendered for the purpose of exercise, transfer, split up,
combination, or exchange will, if surrendered to the Company, be delivered to
the Warrant Agent for cancellation or in canceled form, or, if surrendered to
the Warrant Agent, will be canceled by it, and no Warrant Certificates will be
issued in lieu thereof except as expressly permitted by this Agreement. The
Company will deliver to the Warrant Agent for cancellation and retirement, and
the Warrant Agent will so cancel and retire, any other Warrant Certificate
purchased or acquired by the Company otherwise than upon the exercise thereof.
The Warrant Agent will deliver all canceled Warrant Certificates to the Company,
or will, at the written request of the Company, destroy such canceled Warrant
Certificates, and in such case will deliver a certificate of destruction thereof
to the Company.
3. Duration and Exercise of Warrants.
3.1. Duration and Exercise of Warrants. (a) Warrants may be exercised by
the Holder thereof, in whole or in part, at any time and from time to time after
the date hereof and prior to 5:00 p.m., New York City time, on September 1, 2001
(the "Expiration Date"); provided that Holders shall be able to exercise their
Warrants only if (i) (A) the Warrant Shares Registration Statement (as defined
in Section 10) is then in effect and the Company has delivered to each person
exercising a Warrant a current prospectus meeting the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or (B) the exercise
of such Warrants is exempt from the registration requirements of the Securities
Act, and (ii) the Warrant Shares are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
Holder of the Warrants to be exercised, and, if applicable, the persons to whom
it is proposed that the Warrant Shares be issued on exercise of the Warrants,
reside. The Holder of Warrants may exercise them by delivering to the Warrant
Agent, at its principal office designated for such purpose, the following:
(i) the Warrant Certificate or Warrant Certificates
representing the Warrants to be exercised, with the Form of Exercise
Notice duly completed and executed by the Holder thereof; and
(ii) cash, a certified or bank cashier's check payable to the
order of the Company, or a wire transfer of immediately available funds
to an account designated by the Warrant Agent, in each case in an amount
equal to the product of (A) the number of Warrant Shares purchasable
upon the exercise of the Warrants designated for exercise in the Form of
Exercise Notice and (B) the Warrant Price.
(b) Subject to Section 2.3 hereof, as promptly as practicable after an
exercise of Warrants in accordance with Section 3.1(a), and in any event within
10 Business Days (as defined in Section 3.2) after such exercise, the Warrant
Agent will (i) requisition from any transfer agent
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for the Common Stock (or make available, if the Warrant Agent is the transfer
agent) certificates representing the number of Warrant Shares to be purchased
(and the Company hereby irrevocably authorizes and directs its transfer agent to
comply with all such requests), (ii) after receipt of such certificates, cause
the same to be delivered to or upon the order of the Holder exercising such
Warrants, registered in such name or names as may be designated by such Holder,
(iii) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of the issuance of fractional Warrant Shares in accordance with the
provisions of Section 5, and (iv) when appropriate, after receipt, deliver such
cash to or upon the order of the Holder exercising such Warrants.
(c) If the number of Warrants represented by a Warrant Certificate are
not exercised in full, the Company will prepare, execute, and deliver to the
Warrant Agent a new Warrant Certificate evidencing Warrants equivalent to such
Warrants remaining unexercised and the Warrant Agent will countersign and
deliver such new Warrant Certificate to or upon the order of the Holder
exercising such Warrants, registered in such name or names as may be designated
by such Holder.
(d) The Company will take all such action as may be necessary to ensure
that all Warrant Shares delivered upon exercise of Warrants, at the time of
delivery of the certificates for such Warrant Shares, will (subject to payment
of the Warrant Price) be duly and validly authorized and issued, fully paid, and
nonassessable and, if shares of Common Stock are then listed on any national
securities exchange (as defined in the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) or qualified for quotation on The Nasdaq Stock
Market, will be duly listed or qualified for quotation thereon, as the case may
be.
(e) In the event that the Company is obligated to pay cash in lieu of
fractional Warrant Shares pursuant to Section 5 in connection with any exercise
of Warrants, it will make all arrangements necessary so that such cash is
available for distribution by the Warrant Agent, if and when appropriate.
(f) The Company will pay all expenses, taxes, and other charges payable
in connection with the preparation, issuance, and delivery of certificates
representing Warrant Shares or Warrant Certificates representing unexercised
Warrants in connection with any exercise of Warrants in accordance with Section
3.1(a), except that, if any such certificates representing Warrant Shares or any
such Warrant Certificates are to be registered in a name or names other than
that of the Holder at the time of any such exercise of Warrants, funds
sufficient to pay all transfer or similar taxes payable as a result of such
transfer shall be paid by the Holder at the time of such exercise or promptly
upon receipt of a written request of the Company for payment thereof. In
connection with any exercise of Warrants in accordance with Section 3.1(a), the
Warrants will be deemed to have been exercised, any certificate representing
Warrant Shares or any Warrant Certificate issued on account thereof will be
deemed to have been issued, and the person in whose name any such certificate or
Warrant Certificate is issued will be deemed for all
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purposes to have become a Holder of record of the Warrant Shares or Warrants, as
the case may be, represented thereby as of the date of such exercise.
3.2. Certain Definitions. For purposes of this Agreement, (a) the term
"Business Day" means any day other than a Saturday, Sunday, or a day on which
banking institutions in the state of New York are authorized or obligated by law
or executive order to close and (b) the term "Trading Day" means any day on
which shares of Common Stock are traded on the principal national securities
exchange on which the shares of Common Stock are listed or admitted to trading
or, if shares of Common Stock are not so listed or admitted to trading, in the
over-the-counter market.
4. Adjustments of Warrant Price and Warrant Shares. The Warrant Price
and the number and kind of Warrant Shares purchasable upon exercise of the
Warrants will be subject to adjustment from time to time upon the occurrence of
certain events as provided in this Section 4.
4.1. Mechanical Adjustments. The Warrant Price and the number and kind
of Warrant Shares purchasable upon exercise of a Warrant will be subject to
adjustment as follows:
(a) Subject to Section 4.1(e), if the Company (i) pays a dividend
or otherwise distributes to holders of its Common Stock, as such, shares
of its capital stock (whether Common Stock or capital stock of any other
class), (ii) subdivides its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combines its outstanding
shares of Common Stock into a smaller number of shares of Common Stock,
or (iv) issues any shares of its capital stock in a reclassification of
its outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation, merger, or other
business combination transaction in which the Company is the continuing
or surviving corporation), then the number and kind of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto will
be adjusted so that the Holder of each Warrant will be entitled to
receive (A) in the case of a dividend or distribution, the sum of (1)
the number of Warrant Shares that, if such Warrant had been exercised
immediately prior to such adjustment, such Holder would have received
upon such exercise and (2) the number and kind of additional shares of
capital stock that such Holder would have been entitled to receive as a
result of such dividend or distribution by virtue of its ownership of
such Warrant Shares, (B) in the case of a subdivision or combination,
the number of Warrant Shares that, if such Warrant had been exercised
immediately prior to such adjustment, such Holder would have received
upon such exercise, adjusted to give effect to such subdivision or
combination as if such Warrant Shares had been subject thereto, or (C)
in the case of an issuance in a reclassification, the sum of (1) the
number of Warrant Shares that, if such Warrant had been exercised
immediately prior to such adjustment, such Holder would have received
upon such exercise and retained after giving effect to such
reclassification as if such Warrants Shares had been subject thereto and
(2) the number and kind of additional shares of capital stock that such
Holder would have been entitled to receive as a result of such
reclassification as if such Warrant Shares had
-6-
been subject thereto. An adjustment made pursuant to this paragraph (a)
will become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or
distribution in the case of a dividend or distribution and will become
effective immediately after the effective date of such subdivision,
combination, or reclassification in the case of a subdivision,
combination, or reclassification. If, after an adjustment, a Holder of a
Warrant upon exercise of it may receive shares of two or more classes of
capital stock of the Company, the Company shall determine the allocation
of the adjusted Warrant Price between the classes of capital stock.
After such allocation, the exercise privilege and the Warrant Price of
each class of capital stock shall thereafter be subject to adjustments
as nearly equivalent as may be practicable to the adjustments provided
for Common Stock in this Section 4. Such adjustments shall be made
successively whenever any event listed above shall occur.
(b) Subject to Section 4.1(e), if the Company distributes to
holders of its Common Stock, as such, (i) evidences of indebtedness or
assets (excluding regular cash dividends or cash distributions payable
out of consolidated retained earnings) of the Company or any corporation
or other legal entity a majority of the voting equity securities or
equity interests of which are owned, directly or indirectly, by the
Company (a "Subsidiary"), (ii) shares of capital stock of any
Subsidiary, (iii) securities convertible into or exchangeable for
capital stock of the Company (including Common Stock or capital stock of
any other class) or any Subsidiary, or (iv) any rights, options, or
warrants to purchase any of the foregoing (excluding those described in
Section 4.1(c)), then the number of Warrant Shares thereafter
purchasable upon exercise of each Warrant will be adjusted to the number
that results from multiplying the number of Warrant Shares purchasable
upon the exercise of each Warrant immediately prior to such adjustment
by a fraction, the numerator of which will be the Current Market Price
per share (as defined in Section 4.1(d)) of Common Stock on the record
date for such distribution, and the denominator of which will be such
Current Market Price per share of Common Stock less the fair value (as
determined in good faith by the Board of Directors of the Company, whose
determination will be conclusive if based on the financial advice of a
nationally recognized investment banking firm) of the portion of the
evidences of indebtedness, assets, securities, or rights, options, or
warrants so distributed on account of one share of Common Stock. Such
adjustment will be made whenever any such distribution is made, and will
become effective immediately after the record date for the determination
of stockholders entitled to receive such distribution. Except as
provided in Section 4.1(h), no further adjustments of the number of
Warrant Shares will be made upon the actual issue of shares of Common
Stock upon conversion or exchange of such securities convertible or
exchangeable for shares of Common Stock or upon exercise of such rights,
warrants, or options for shares of Common Stock.
(c) Subject to Section 4.1(e), if the Company issues rights,
options, or warrants to holders of the outstanding shares of Common
Stock, as such, entitling the holders of such rights, options, or
warrants (for a period expiring within 60 calendar days
-7-
after the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share that is lower on the record
date mentioned below than the Current Market Price per share of Common
Stock on such record date, then the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant will be adjusted to the
number that results from multiplying the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior to such
adjustment by a fraction (not to be less than one), the numerator of
which will be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock offered
by such rights, options, or warrants for subscription or purchase and
the denominator of which will be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common
Stock which the aggregate subscription or purchase price of the total
number of shares of Common Stock so offered would purchase at the
Current Market Price per share of Common Stock on such record date. Such
adjustment will be made whenever such rights, options, or warrants are
issued, and will become effective immediately after the record date for
the determination of stockholders entitled to receive such rights,
options, or warrants. In case such subscription or purchase price may be
paid in a consideration part or all of which is in a form other than
cash, the fair value of such consideration will be as determined by the
Board of Directors of the Company, whose determination will be
conclusive if based on the financial advice of a nationally recognized
investment banking firm. Except as provided in Section 4.1(h), no
further adjustments of the number of Warrant Shares will be made upon
the actual issue of shares of Common Stock upon exercise of such rights,
options, or warrants.
(d) For purposes of this Agreement, the "Current Market Price"
per share of Common Stock on any date will be the average of the daily
Closing Prices (as defined below in this Section 4.1(d)) for 30
consecutive Trading Days commencing 45 Trading Days before the date of
such computation. The closing price for each day (the "Closing Price")
will be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the closing bid
and asked prices regular way for such day, in each case on the principal
national securities exchange on which the shares of Common Stock are
listed or admitted to trading or, if not so listed or admitted to
trading, the average of the closing bid and asked prices of the shares
of Common Stock in the over-the-counter market as reported by The Nasdaq
Stock Market or any comparable system, or if not so reported by any such
organization on such day, the average of the bid and asked prices
furnished by a professional market maker selected by the Board of
Directors of the Company. In the absence of one or more such quotations,
the Board of Directors of the Company will determine the Current Market
Price in good faith on the basis of such quotations or other relevant
information as it considers appropriate.
(e) No adjustment in the number of Warrant Shares purchasable
upon the exercise of a Warrant will be required unless such adjustment
would require an increase or decrease in the number of Warrant Shares
purchasable upon the hypothetical exercise of a
-8-
Warrant of at least 1%; provided, however, that any adjustments which by
reason of this paragraph (e) are not required to be made currently will
be carried forward and made at the time and together with the next
subsequent adjustment which, together with any adjustments so carried
forward, would require an increase or decrease in the number of Warrant
Shares purchasable upon the hypothetical exercise of a Warrant of 1% or
more. All calculations with respect to the number of Warrant Shares will
be made to the nearest one-thousandth of a share and all calculations
with respect to the Warrant Price will be to the nearest whole cent. No
adjustment in the number of Warrant Shares purchasable upon the exercise
of a Warrant will be made under paragraph (b) or (c) of this Section 4.1
if the Company issues or distributes to each Holder the shares, rights,
options, warrants, convertible or exchangeable securities, evidences of
indebtedness, assets, or other securities referred to in the applicable
paragraph that such Holder would have been entitled to receive had the
Warrants been exercised prior to the happening of such event on the
record date with respect thereto (provided that, in any case in which
such Holder would have been so entitled to receive a fractional interest
in any such securities or assets, the Company may distribute to such
Holder in lieu of such fractional interest cash in an amount equal to
the fair value of such fractional interest as determined in good faith
by the Board of Directors of the Company). No adjustment in the number
of Warrant Shares will be made for a change in the par value of the
shares of Common Stock.
(f) Whenever the number of Warrant Shares purchasable upon the
exercise of each Warrant is adjusted as herein provided, the Warrant
Price will be adjusted by multiplying the Warrant Price in effect
immediately prior to such adjustment by a fraction, the numerator of
which will be the number of Warrant Shares purchasable upon the exercise
of each Warrant immediately prior to such adjustment, and the
denominator of which will be the number of Warrant Shares so purchasable
immediately thereafter.
(g) For the purpose of this Agreement, the term "Common Stock"
means (i) the class of shares designated as the Common Stock of the
Company as of the date of this Agreement, (ii) all shares of any class
or classes (however designated) of the Company, now or hereafter
authorized, the holders of which have the right, without limitation as
to amount, either to all or to a part of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of
which are ordinarily entitled to vote generally in the election of
directors of the Company, or (iii) any other class of shares resulting
from successive changes or reclassifications of such shares consisting
solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time, as a
result of an adjustment made pursuant to Section 4.1(a), the Warrants
become exercisable to purchase Warrant Shares other than shares of
Common Stock, thereafter the number of such other shares so purchasable
upon exercise of each Warrant and the Warrant Price payable in respect
of such other shares upon the exercise of each Warrant will be subject
to adjustment from time to time in a manner and on terms
-9-
as nearly equivalent as practicable to the provisions with respect to
the Warrant Shares and the Warrant Price contained in this Section 4.1.
(h) Upon the expiration of any rights, options, warrants, or
conversion or exchange privileges, if any thereof have not been
exercised, the Warrant Price and the number of Warrant Shares
purchasable upon the exercise of each Warrant will, upon such
expiration, be readjusted and will thereafter be such as it would have
been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if (i) the only shares of Common
Stock so issued were the shares of Common Stock, if any, actually issued
or sold upon the exercise of such rights, options, warrants, or
conversion or exchange rights and (ii) such shares of Common Stock, if
any, were issued or sold for the consideration actually received by the
Company upon such exercise, conversion, or exchange plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale, or grant of all such rights, options, warrants, or
conversion or exchange rights whether or not exercised; provided,
however, that no such readjustment will have the effect of increasing
the Warrant Price or decreasing the number of Warrant Shares purchasable
upon the exercise of each Warrant by an amount in excess of the amount
of the adjustment initially made in respect of the issuance, sale, or
grant of such rights, options, warrants, or conversion or exchange
privileges.
4.2. Notice of Adjustment. Whenever the Warrant Price or the number or
kind of Warrant Shares purchasable upon exercise of the Warrants is adjusted
pursuant to any of the provisions of this Agreement, the Company will promptly
give notice to the Holders of such adjustment or adjustments, together with a
certificate of a firm of independent public accountants selected by the Company
(who may be the regular accountants employed by the Company) setting forth the
adjustments in the Warrant Price and the number or kind of Warrant Shares
purchasable upon exercise of each Warrant, and also setting forth a brief
statement of the facts requiring such adjustments and the computations upon
which such adjustments are based. Such certificate will be conclusive evidence
of the correctness of such adjustments.
4.3. No Adjustment for Dividends. Except as provided in Section 4.1, no
adjustment or payment in respect of any dividends will be made at any time.
4.4 Voluntary Reduction. The Company from time to time may reduce the
Warrant Price by any amount for any period of time, if the period is at least 20
calendar days and if the reduction is irrevocable during the period; provided
that in no event may the Warrant Price be less than the par value of the Common
Stock. Whenever the Warrant Price is so reduced, the Company will mail to
Holders a notice of the reduction at least 15 calendar days before the date the
reduced Warrant Price takes effect. Such notice will state the reduced Warrant
Price and the period during which it will be in effect. Failure to mail the
notice or any defect therein will not affect the legality or validity of the
reduction. A reduction of the Warrant Price does not change or adjust the
Warrant Price otherwise in effect for purposes of Section 4.1.
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4.5. Preservation of Purchase Rights Upon Merger, Consolidation, Etc. In
case of any consolidation, merger, or other business combination transaction in
which the Company is not the continuing or surviving corporation, or in case of
any sale, transfer, or lease to another corporation of all or substantially all
the property of the Company, the Company and such successor or purchasing
corporation, as the case may be, will execute an agreement providing that each
Holder will have the right thereafter, upon payment of an amount equal to the
amount payable upon the exercise of a Warrant immediately prior thereto, to
purchase upon exercise of each Warrant the kind and amount of securities or
property that it would have owned or have been entitled to receive after giving
effect to such consolidation, merger, sale, transfer, or lease on account of the
Warrant Shares that would have been purchasable upon the exercise of such
Warrant had such Warrant been exercised immediately prior thereto (provided
that, to the extent that such Holder would have been so entitled to receive cash
on account of such Warrant Shares, such Holder may elect in connection with the
exercise of a Warrant in accordance with Section 3.1 to reduce the amount of
cash that it would be entitled to receive upon such exercise in exchange for a
corresponding reduction in the amount payable upon such exercise); provided,
however, that no adjustment in respect of dividends, interest, or other income
on or from such shares or other securities or property will be made during the
term of a Warrant or upon the exercise of a Warrant. Such agreement will provide
for adjustments that will be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 4. The provisions of this Section 4.5
will similarly apply to successive consolidations, mergers, sales, transfers, or
leases.
4.6. Warrant Certificates. Whether or not any adjustments in the Warrant
Price or the number or kind of Warrant Shares purchasable upon the exercise of
the Warrants has been made, Warrant Certificates theretofore or thereafter
issued may continue to express the same Warrant Price and number and kind of
Warrant Shares as are stated in the Warrant Certificate initially issued.
5. Fractional Interests. Neither the Company nor the Warrant Agent will
be required to issue fractional Warrant Shares or fractional interests in any
other securities upon the exercise of the Warrants. If any fraction of a Warrant
Share or other security would, except for the provisions of this Section 5, be
issuable upon the exercise of the Warrants, the Company will pay an amount
(computed to the nearest cent) in cash (a) in lieu of a fractional Warrant
Share, equal to the Current Market Price for one share of Common Stock, as
defined in Section 4.1(d), on the Trading Day immediately preceding the date on
which the Warrants are presented for exercise, multiplied by such fraction of a
Warrant Share or (b) in lieu of a fractional interest in any other security,
equal to the fair value of such fractional interest, determined in a manner as
similar as possible, taking into account the difference in the fractional
interest being valued, to the calculation described in the foregoing clause (a).
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6. Warrant Agent Matters.
6.1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as warrant agent in accordance with the terms and
conditions hereof, and the Warrant Agent hereby accepts such appointment.
6.2. Concerning the Warrant Agent. (a) The Company will pay to the
Warrant Agent reasonable compensation for all services rendered by it hereunder
and will reimburse the Warrant Agent for its reasonable expenses and counsel
fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The
Company will indemnify the Warrant Agent for, and hold it harmless against, any
loss, liability, suit, action, proceeding, or expense, incurred without
negligence, bad faith, or willful misconduct on the part of the Warrant Agent,
for anything done or omitted by the Warrant Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly.
(b) The Warrant Agent will incur no liability to the Company or to any
Holder for or in respect of any action taken, suffered, or omitted by it in
connection with its administration of this Agreement in reliance upon any
Warrant Certificate or certificate evidencing Common Stock or other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed, and, where necessary, verified or acknowledged, by the proper
person or persons.
6.3. Merger or Consolidation or Change of Name of Warrant Agent. (a) Any
corporation into which the Warrant Agent or any successor Warrant Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Warrant Agent or any successor Warrant
Agent is a party, or any corporation succeeding to the corporate trust business
of the Warrant Agent or any successor Warrant Agent, will be the successor to
the Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 6.5. In case at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement, and in case
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the original Warrant Agent; and in case at that time any of
the Warrant Certificates shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrant Certificates either in the name of
the predecessor Warrant Agent or in the name of the successor to the Warrant
Agent; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant
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Agent whose name has been changed may adopt the countersignature under its prior
name, and in case at that time any of the Warrant Certificates shall not have
been countersigned, the Warrant Agent may countersign such Warrant Certificates
either in its prior name or in its changed name, and in all such cases such
Warrant Certificates shall have the full force and effect provided in the
Warrant Certificates and in this Agreement.
6.4. Duties of Warrant Agent. The Warrant Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the Holders, by their acceptance of
Warrant Certificates, will be bound:
(a) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Warrant Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Warrant Agent deems it necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the President,
or any Vice President of the Company and delivered to the Warrant Agent; and
such certificate will be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Warrant Agent's duties will be determined solely by the
provisions hereof. The Warrant Agent will not be liable for anything that it may
do or refrain from doing in connection with this Agreement except for its own
negligence, bad faith, or willful misconduct; provided, however, that the
Warrant Agent shall not be liable for any indirect, special, punitive or
consequential damages.
(d) The Warrant Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Warrant
Certificates or be required to verify the same, but all such statements and
recitals are and will be deemed to have been made by the Company only.
(e) The Warrant Agent will not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution and delivery hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate (except the due
countersignature thereof by the Warrant Agent); nor will it be responsible for
any breach by the Company of any covenant or condition contained in this
Agreement or in any Warrant Certificate; nor will it be responsible for any
adjustment required under the provisions of Section 4 hereof or responsible for
the manner, method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
-13-
to the exercise of Warrants evidenced by Warrant Certificates after actual
notice of any such adjustment); nor will it by any act hereunder be deemed to
make any representation or warranty as to the authorization or reservation of
any shares of stock or other securities to be issued pursuant to this Agreement
or any Warrant Certificate or as to whether any shares of stock or other
securities will, when issued, be validly authorized and issued, fully paid, and
nonassessable.
(f) The Company will perform, execute, acknowledge, and deliver or cause
to be performed, executed, acknowledged, and delivered all such further and
other acts, instruments, and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing by the Warrant Agent of the
provisions of this Agreement.
(g) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, or any Vice President of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it will not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer.
(h) The Warrant Agent and any stockholder, director, officer, or
employee of the Warrant Agent may buy, sell, or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein will preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Warrant Agent will not be answerable or
accountable for any act, default, neglect, or misconduct of any such attorneys
or agents or for any loss to the Company resulting from any such act, default,
neglect, or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof. The Warrant Agent will not be under any duty
or responsibility to insure compliance with any applicable federal or state
securities laws in connection with the issuance, transfer, or exchange of
Warrant Certificates.
6.5. Change of Warrant Agent. The Warrant Agent or any successor Warrant
Agent may resign and be discharged from its duties under this Agreement upon 30
calendar days' notice in writing mailed to the Company and to each transfer
agent of the Common Stock by registered or certified mail, and to the Holders by
first-class mail. The Company may remove the Warrant Agent or any successor
Warrant Agent upon 30 calendar days' notice in writing, mailed to the Warrant
Agent or successor Warrant Agent, as the case may be, and to each transfer agent
of the Common Stock by registered or certified mail, and to the Holders by
first-class mail. If the Warrant Agent resigns or is removed or otherwise
becomes incapable of acting, the Company will appoint a successor to the Warrant
Agent. If the Company fails to make such appointment within a period of 30
calendar days after giving notice of such removal or after it has been notified
in
-14-
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by any Holder (who will, with such notice, submit his Warrant
Certificate for inspection by the Company), then any Holder may apply to any
court of competent jurisdiction for the appointment of a successor Warrant
Agent. Pending appointment of a successor to such Warrant Agent, either by the
Company or by such a court, the duties of the Warrant Agent will be carried out
by the Company. Any successor Warrant Agent, whether appointed by the Company or
by such a court, will be a corporation organized and doing business under the
laws of the United States or of the State of New York (or of any other state of
the United States so long as such corporation is authorized to do business as a
banking institution in the State of New York), in good standing, having a
principal office in the State of New York, which is authorized under such laws
to exercise corporate trust powers and is subject to supervision or examination
by federal or state authority and which has at the time of its appointment as
Warrant Agent a combined capital and surplus of at least $50 million. After
appointment, the successor Warrant Agent will be vested with the same powers,
rights, duties, and responsibilities as if it had been originally named as
Warrant Agent without further act or deed; but the predecessor Warrant Agent
will deliver and transfer to the successor Warrant Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act, or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company will file notice thereof in writing
with the predecessor Warrant Agent and each transfer agent of the Common Stock,
and mail by first class mail a notice thereof to each Holder. Failure to give
any notice provided for in this Section 6.5, however, or any defect therein,
will not affect the legality or validity of the resignation or removal of the
Warrant Agent or the appointment of the successor Warrant Agent, as the case may
be.
7.1 No Rights as a Stockholder; Notices to Holders. Nothing contained in
this Agreement or in the Warrant Certificate will be construed as conferring
upon the Holders or their transferees the right to vote, or to receive
dividends, or to consent or to receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company;
provided, however, that if, at any time prior to the Expiration Date and prior
to the exercise of all of the Warrants, any of the following events occur:
(a) The Company declares any dividend payable in any securities
upon its shares of Common Stock or makes any distribution (other than a
regular cash dividend payable out of consolidated retained earnings) to
the holders of its shares of Common Stock;
(b) The Company offers to the holders of its Common Stock any
shares of capital stock of the Company or any Subsidiary or securities
convertible into or exchangeable for shares of capital stock of the
Company or any Subsidiary or any option, right, or warrant to subscribe
for or purchase any thereof;
-15-
(c) The Company distributes to the holders of its Common Stock
evidences of indebtedness or assets (including any cash dividend which
would result in an adjustment under Section 4.1) of the Company or any
Subsidiary;
(d) Any reclassification of the Common Stock, any consolidation
of the Company with or merger of the Company into another corporation,
any sale, transfer, or lease to another corporation of all or
substantially all the property of the Company, or any proposal of the
Company to effect any of the foregoing transactions that has been
publicly announced by the Company; or
(e) Any proposal by the Company to effect a dissolution,
liquidation, or winding up of the Company that has been publicly
announced by the Company;
then in any one or more of such events the Company will give notice of such
event to the Holders, as provided in Section 12 hereof, such giving of notice to
be completed at least 10 business days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, or subscription rights or
at least 20 business days prior to the date fixed as a record date or the date
of closing the transfer books for the determination of stockholders entitled to
vote on such proposed reclassification, consolidation, merger, sale, transfer,
or lease, dissolution, liquidation, or winding up. Such notice will specify such
record date or the date of closing the transfer books, as the case may be, for
such event. Failure to mail or receive such notice or any defect therein or in
the mailing thereof will not affect the validity of any action taken in
connection with such event.
7.2. Reports to Holders. The Company will deliver to the Warrant Agent,
within 15 calendar days after it files them with the Securities and Exchange
Commission (the "SEC"), copies of its annual report and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) that the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. To the
extent any such information, documents, or other reports are required to be sent
by the Company to the holders of outstanding Common Stock, the Company will
simultaneously send copies thereof to the Holders of Warrants. The Warrant Agent
will provide to any Holder promptly upon request a copy of any document
delivered to the Warrant Agent by the Company pursuant to this Section 7.2.
7.3. Agreements Respecting Warrants. The Company will not enter into any
agreement or instrument which would preclude the exercise of the Warrants as
herein provided.
8. Agreement of Warrant Holders. Every Holder by accepting a Warrant
Certificate consents and agrees with the Company and the Warrant Agent and with
every other Holder that:
-16-
(a) The Warrant Certificates are transferable only in accordance with
the terms of this Agreement and only on the registry books of the Warrant Agent
if surrendered at the principal office of the Warrant Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of transfer, and
otherwise in compliance with Section 2;
(b) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the absolute owner thereof
and of the Warrants evidenced thereby (notwithstanding any notations of
ownership or writing on the Warrant Certificate made by anyone other than the
Company or the Warrant Agent) for all purposes whatsoever, and neither the
Company nor the Warrant Agent will be affected by any notice to the contrary;
(c) Such Holder expressly waives any right to receive any fractional
Warrants and any fractional securities upon exercise or exchange of a Warrant;
and
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Warrant Agent will have any liability to any Holder or other
person as a result of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or other order,
decree, or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory, or administrative agency or commission, or any
statute, rule, regulation, or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, that the Company will use reasonable efforts to
have any such order, decree, or ruling lifted or otherwise overturned as soon as
possible.
9. Reservation of Common Stock. The Company will, for so long as
Warrants remain outstanding, reserve and keep available, solely for issuance and
delivery upon the exercise of Warrants, a number of shares of Common Stock (or,
if applicable, other securities) sufficient to provide for the exercise of all
outstanding Warrants. The transfer agent for the Common Stock (or, if
applicable, other securities) will be irrevocably authorized and directed at all
times until the exercise or expiration of the Warrants to reserve such number of
authorized shares of Common Stock (or, if applicable, other securities) as
necessary for such purpose. The Company will keep copies of this Agreement on
file with the transfer agent and will supply the transfer agent with duly
executed stock certificates for such purpose.
10. Listing and Registration. (a) The [Warrants and the]* Warrant Shares
have been listed for trading on the Nasdaq National Market, and the Company will
use its reasonable best efforts to maintain such listing. [In addition, the
Company will use its reasonable best efforts to secure and maintain the listing
of the Warrants on the Nasdaq National Market.]*
--------
*The language in this section is bracketed because the language to be included
in the definitive agreement depends upon whether the Warrants will have been
listed as of the date of the definitive agreement.
-17-
(b) The Warrants issued as contemplated by clauses (a) and (b) of the
first sentence of Section 1.1 have been registered for public distribution under
the Securities Act pursuant to a registration statement (No. 333-___________)
filed by the Company with the SEC. The Warrant Shares have been registered for
public distribution upon exercise of the Warrants under the Securities Act
pursuant to registration statement (No. 333-________________) (together with any
amendments thereto, the "Warrant Shares Registration Statement") filed by the
Company with the SEC. Subject to Black Out Periods (as defined below in this
Section 10(b)), the Company will use its reasonable best efforts to keep the
Warrant Shares Registration Statement continuously effective under the
Securities Act until the expiration or exercise of all Warrants in order to
permit the prospectus included therein to be lawfully delivered by the Company
to the Holders exercising such Warrants and by Holders of such Warrants to
prospective purchasers of such Warrants. Notwithstanding the foregoing, the
Company shall not be required to amend or supplement the Warrant Shares
Registration Statement, any related prospectus or any document incorporated
therein by reference for a period (a "Black Out Period"), beginning on the date
the Company gives notice (the "Black Out Notice") to the Warrant Agent and the
Holders that such a period has commenced and ending on the earlier of (i) the
date the information responsible for the Black Out Period is disclosed to the
public and (ii) 60 calendar days after any such Black Out Notice is given, in
the event that (A) an event occurs and is continuing as a result of which the
Warrant Shares Registration Statement, any related prospectus, or any document
incorporated therein by reference as then amended or supplemented would, in the
Company's good faith judgment, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
(B) (1) the Company determines in its good faith judgment that the disclosure of
such event at such time would have a material adverse effect on the business,
operations, or prospects of the Company or (2) the disclosure otherwise relates
to a material business transaction, including without limitation any bona fide
financing plan, that has not yet been publicly disclosed; provided, however,
that (x) no Black Out Period may be in effect during the six months immediately
prior to the Expiration Date, (y) there shall be no more than two Black Out
Periods during any period of 180 consecutive calendar days, and (z) there shall
be no more than three Black Out Periods during the term of the Warrants.
(c) The Company will cause any amendment or supplement to the Warrant
Shares Registration Statement or the related prospectus, as of the effective
date of the Warrant Shares Registration Statement, amendment, or supplement, (i)
to comply in all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the SEC and (ii) not to contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) The Company will give prompt written notice to the Warrant Agent and
the Holders of (i) the effectiveness of any post-effective amendment to the
Warrant Shares Registration Statement, (ii) the issuance by the SEC of any stop
order suspending the effectiveness of the Warrant Shares Registration Statement
or the initiation or threatening of any
-18-
proceedings for that purpose, (iii) the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the qualification
of the Warrant Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (iv) the happening of any event
that requires the Company to make changes in the Warrant Shares Registration
Statement or the related prospectus in order to make the statements therein not
misleading, and (v) the commencement and termination of any Black Out Period.
(e) The Company will use its reasonable best efforts to prevent the
issuance or obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of the Warrant Shares Registration Statement.
(f) Upon the occurrence of any event contemplated by Section 10(d)(iv)
hereof or, if any such event occurs during a Black Out Period, upon the
termination of such Black Out Period, the Company will promptly prepare and file
a post-effective amendment to the Warrant Shares Registration Statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to Holders of Warrants, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and will contain the current
information required by the Securities Act.
(g) The Company will comply with all applicable rules and regulations of
the SEC and will make generally available to its securities holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days (plus any extension permitted by Rule 12b-25 under
the Exchange Act after the end of a 12-month period (or 90 days, if such period
is a fiscal year (plus any extension permitted by Rule 12b-25 under the Exchange
Act)) beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.
(h) The Company will register or qualify or cooperate with the Holders
in connection with the registration or qualification of the Warrant Shares for
offer and sale by the Company upon exercise of the Warrants under the securities
or blue sky laws of such state of the United States as any Holder reasonably
requests and do any and all other acts or things necessary or advisable to
enable such offer and sale in such jurisdictions; provided that the Company
shall not be required to (i) qualify to do business in any jurisdiction in which
it is not then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction in which it is not
then so subject.
(i) The Company will bear all expenses incurred by it in connection with
the performance of its obligations under this Section 10.
(j) The Company acknowledges and agrees that any remedy at law for
breach of any provision of this Section 10 will be inadequate and that, in
addition to any other remedies that the
-19-
Holders may have, the Holders will be entitled to the remedy of specific
performance to ensure the Company performs its obligations under this Section
10. The election of any one or more remedies by the Holders hereunder will not
constitute a waiver of the right to pursue other available remedies.
11. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Warrant Agent that:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to execute, deliver,
and perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(b) The execution, delivery, and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of the Company;
(c) The execution, delivery, and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof do not and will
not conflict with, violate, or constitute a breach of any material
contract, agreement, or instrument by which the Company is bound or any
judgment, order, decree, law, statute, rule, regulation, or other
judicial or governmental restriction to which the Company is subject;
(d) This Agreement constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting creditors' rights generally; and
(e) The Warrants, when issued and delivered to the initial
Holders as provided in this Agreement, and the Warrant Shares issued
upon exercise of the Warrants, when issued, paid for, and delivered as
provided in this Agreement, will be duly and validly issued and
outstanding, fully paid, and nonassessable.
12. Notices. All notices, requests, waivers, releases, consents, and
other communications required or permitted by this Agreement (collectively,
"Notices") must be in writing. Except as expressly otherwise provided herein
with respect to manner of delivery, notices will be deemed sufficiently given
for all purposes when delivered in person, when dispatched by telegram or
electronic facsimile transmission, when sent by first-class mail, postage
prepaid, or upon confirmation of receipt when dispatched by a nationally
recognized overnight courier service to the appropriate party as follows: (a) if
to a Holder, at the address of such Holder as shown in the registry books
maintained by the Warrant Agent; (b) if to the Company, at The Bank of New
-20-
York, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000, Telecopy No. (___)
___-____ (marked for the attention of the Chief Financial Officer and the
General Counsel), or at such other address as the Company may have furnished to
the Holders and the Warrant Agent in writing; and (c) if to the Warrant Agent,
at _________, ________, ________ _____, Telecopy No. (___) ___- ____ (marked for
the attention of _______________) or at such other address as the Warrant Agent
may have furnished to the Company and the Holders in writing.
13. Amendment and Waiver. No failure or delay of the Holder in
exercising any power or right hereunder (other than a failure to exercise
Warrants in accordance with the provisions hereof) will operate as a waiver
thereof, nor will any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice or demand on the Company in any case will entitle the
Company to any other or future notice or demand in similar or other
circumstances. Subject to the last sentence of this Section 13, (a) if the
Company so directs, the Company and the Warrant Agent will supplement or amend
this Agreement without the approval of any Holders in order to cure any
ambiguity or correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which shall not in any
way adversely affect the interests of the Holders of Warrants or the Warrant
Agent and (b) the Company and the Warrant Agent may from time to time supplement
or amend this Agreement, with the consent of Holders of at least 50% of the
Warrants then outstanding, for any other purpose. Notwithstanding anything in
this Agreement to the contrary, no supplement or amendment which increases the
Warrant Price, decreases the period of time remaining during which the Warrants
may be exercised, or changes in a manner adverse to Holders the number of
Warrant Shares purchasable upon the exercise of Warrants will be made without
the consent of all Holders. Any such amendment, modification, or waiver effected
pursuant to and in accordance with the provisions of this Section 13 will be
binding upon all Holders and upon each future Holder, the Company, and the
Warrant Agent. In the event of any such amendment, modification, or waiver, the
Company will give prompt notice thereof to all Holders and, if appropriate,
notation thereof will be made on all Warrant Certificates thereafter surrendered
for registration of transfer or exchange.
14. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the Company, the Warrant Agent, and their respective
successors and assigns, and, subject to Sections 1.4 and 8(b), all Holders.
15. Rights of the Parties. Except as provided in Section 14, nothing
expressed or implied in this Agreement is intended or will be construed to
confer upon or give any person or entity other than the Company, the Warrant
Agent, and the Holders any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby. This Agreement will be for the
sole and exclusive benefit of the Company, the Warrant Agent, and the Holders.
All rights of action in respect of this Agreement are vested in the Holders, and
any Holder without the consent
-21-
of the Warrant Agent or any other Holder may, on such Holder's own behalf and
for such Holder's own benefit, enforce such Holder's rights hereunder, including
the right to exercise, exchange, or surrender for transfer such Holder's Warrant
Certificates in accordance with the provisions hereof.
16. Titles and Headings. Titles and headings to Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
17. Certain Interpretive Matters and Definitions. Unless the context
otherwise requires, (a) all references to Sections or Exhibits are to Sections
or Exhibits of or to this Agreement, (b) each term defined in this Agreement has
the meaning assigned to it, (c) "or" is disjunctive but not necessarily
exclusive, and (d) words in the singular include the plural and vice versa. All
references to "$" or dollar amounts are to lawful currency of the United States
of America.
18. Entire Agreement. This Agreement, together with its Exhibits,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof, and there are no agreements among the parties hereto with
respect thereto except as expressly set forth herein.
19. Severability. In case any provision contained in this Agreement is
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.
The Company and the Warrant Agent will endeavor in good faith to replace the
invalid, illegal, or unenforceable provisions with valid, legal, and enforceable
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal, or unenforceable provisions.
20. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed will be deemed to be an original; such
counterparts will together constitute but one agreement.
-22-
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date first above written.
ARCH COMMUNICATIONS
GROUP, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
THE BANK OF NEW YORK
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-23-
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THE WARRANTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE WARRANT AGREEMENT (AS HEREINAFTER DEFINED), A COPY
OF WHICH WILL BE MADE AVAILABLE BY THE ISSUER UPON REQUEST. THE TRANSFER OR
EXCHANGE OF THESE WARRANTS MUST BE REGISTERED IN ACCORDANCE WITH THE WARRANT
AGREEMENT.
NO.____ WARRANTS____
VOID AT 5:00 P.M., NEW YORK CITY TIME
ON SEPTEMBER 1, 2001
Arch Communications Group, Inc. Warrant Certificate
THIS CERTIFIES THAT for value received, __________, or its registered
assigns (the "Holder"), is the owner of the number of Warrants set forth above
that initially entitle it to purchase from Arch Communications Group, Inc., a
Delaware corporation (the "Company"), at any time and from time to time prior to
5:00 p.m., New York City time, on September 1, 2001 (the "Expiration Date"), a
like number of fully paid and nonassessable shares of the Common Stock, par
value $.01 per share, of the Company (the "Common Stock") at an initial purchase
price of $____* per share (the "Warrant Price"), subject to adjustment as
provided in the Warrant Agreement. No Warrant may be exercised at or after 5:00
p.m., New York City time, on the Expiration Date, and to the extent not
exercised by such time, such Warrant shall become void. The shares of Common
Stock purchasable upon exercise of the Warrants are hereinafter referred to as
the "Warrant Shares." On the terms and subject to the conditions set forth in
the Warrant Agreement, the Warrants may be exercised by surrendering to the
Warrant Agent (as hereinafter defined) this Warrant Certificate, with the Form
of Exercise Notice on the reverse side hereof duly executed, together with cash,
a certified or bank cashier's check payable to the order of the Company, or a
wire transfer of immediately available funds to an account designated by the
Warrant Agent, in each case in an amount of lawful currency of the United States
of America equal to the product of (a) the number of Warrant Shares purchasable
upon the exercise of the Warrants designated for exercise in the Form of
Exercise Notice and (b) the Warrant Price.
--------
*To be determined as provided in Schedule II to the Merger Agreement.
A-1
The number and kind of Warrant Shares that may be purchased upon
exercise of the Warrants evidenced by this Warrant Certificate are the number as
of the date of the original issue of such Warrants, based on the shares of
Common Stock of the Company as constituted at such date. As provided in the
Warrant Agreement, the Warrant Price and the number and kind of Warrant Shares
purchasable upon exercise of the Warrants are subject to adjustment.
This Warrant Certificate and the Warrants it represents are subject to,
and entitled to the benefits of, all of the terms, provisions, and conditions of
the Warrant Agreement, dated as of _____________, 199__ (the "Warrant
Agreement"), by and between the Company and The Bank of New York, a _________
corporation (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated herein by reference and made a part hereof and to which Warrant
Agreement reference is hereby made for a full description of the rights,
limitation of rights, obligations, and duties hereunder of the Company and the
Holder. A copy of the Warrant Agreement will be made available to the Holders by
the Company upon request of the Holders.
Subject to the provisions set forth in the Warrant Agreement or in this
Certificate, this Warrant Certificate, with or without other Warrant
Certificates, may be transferred, split up, combined, or exchanged for another
Warrant Certificate or Warrant Certificates, entitling the Holder to purchase a
like aggregate number of Warrant Shares as the Warrant Certificate or Warrant
Certificates surrendered entitled such Holder (or former Holder in the case of a
transfer) to purchase, upon presentation and surrender hereof at the principal
office of the Warrant Agent designated for such purpose, with the Form of
Assignment (if appropriate) and the related Certificate duly executed.
The Company will not be required to issue fractional Warrant Shares or
other fractional interests in securities upon the exercise of any Warrants
evidenced by this Warrant Certificate, but in lieu thereof a cash payment will
be made, as provided in the Warrant Agreement.
Nothing contained in the Warrant Agreement or in this Warrant
Certificate will be construed as conferring upon the Holder of this Warrant
Certificate the right to vote, or to receive dividends, or to consent or (except
as provided in the Warrant Agreement) to receive notice in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
This Warrant Certificate will not be valid or obligatory for any purpose
until it has been countersigned by the Warrant Agent. This Warrant Certificate
will be governed and construed in accordance with the laws of the State of New
York.
A-2
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be executed on this ____ day of __________, ____, by its corporate officers duly
authorized.
Attest: ARCH COMMUNICATIONS GROUP, INC.
__________________________________ By:______________________________
[Name, title] [Name, title]
Dated: ______________
Countersigned:
THE BANK OF NEW YORK
By:_______________________________
[Authorized Signature]
[Title]
A-3
Form of Reverse Side of Warrant Certificate
FORM OF ASSIGNMENT
(To be executed if the Holder desires to transfer Warrants)
FOR VALUE RECEIVED,______________________________________________
hereby sells, assigns, and transfers unto_______________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title, and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Warrant Certificate on the books of the within-named Company, with full
power of substitution.
Dated:________________
_____________________________
Signature
Signature Guaranteed:
A-4
FORM OF EXERCISE NOTICE
(To be executed if the Holder desires to exercise Warrants)
TO ARCH COMMUNICATIONS GROUP, INC.:
The undersigned hereby irrevocably elects to exercise ___________
Warrants evidenced by this Warrant Certificate to purchase the Warrant Shares
issuable upon the exercise of such Warrants and requests that certificates for
such Warrant Shares be issued in the name of:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Please insert social security or
other identifying number:_______________________________________________________
If such number of Warrants is not all the Warrants evidenced by this Warrant
Certificate, a new Warrant Certificate for the balance remaining of such
Warrants will be registered in the name of and delivered to:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Please insert social security or
other identifying number:_______________________________________________________
Dated:_________________
_____________________________
Signature
Signature Guaranteed:
A-5
NOTICE
Signatures on the foregoing Form of Assignment and Form of
Exercise Notice and in the related Warrant Certificates must correspond to the
name as written upon the face of this Warrant Certificate in every particular,
without alternation or enlargement or any change whatsoever.
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
A-6
NORTHWESTERN MUTUAL SERIES FUND, INC.
for the High Yield Bond Portfolio
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and Northwestern Mutual Series Fund, Inc. for the High
Yield Bond Portfolio. Terms used herein with initial capital letters that are
not otherwise defined shall have the meanings ascribed to such terms in the
Standby Commitment Letter.
The parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of
the Standby Commitment Letter is hereby amended in its entirety to read as
follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B to the Merger Agreement (the "Arch Warrant Agreement") or (B)
if a Rights Offering Adjustment shall have occurred, warrants entitling
the holders thereof to purchase shares of Existing Arch Common Stock
("Arch Participation Warrants"), with such Arch Participation Warrants
to be issued pursuant to, and to have the terms set forth in, a warrant
agreement in the form attached as Exhibit B-1 to the Merger Agreement
(the "Arch Participation Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will
receive pursuant to the Plan (i) shares of Existing Arch Common Stock
and (ii) rights to purchase ("Rights") for cash either (A) if a Rights
Offering Adjustment shall not have occurred, units ("Units") consisting
of (x) shares of Existing Arch Common Stock and (y) Arch Warrants or (B)
if a Rights Offering Adjustment shall have occurred, shares of Existing
Arch Common Stock ("Rights Shares"); (d) holders of claims arising under
or relating to the Credit Agreement, dated December 4, 1995, as amended,
among MobileMedia and the other parties thereto ("Secured Claims"), to
the extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it as of the date hereof in respect
of which Rights are to be distributed, in each case as permitted by
Section 3 below, and (ii) the Rights sold or transferred by the Standby
Purchaser or the Rights distributed in respect of Unsecured Claims held
by it as of the date hereof that are hereafter sold or transferred by
the Standby Purchaser are not exercised prior to the expiration thereof
(at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based upon the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, identical Units or (y) if a Rights
Offering Adjustment shall have occurred, Rights Shares underlying, in
each case, such unexercised Rights, to the extent that the aggregate
purchase price therefor, together with the aggregate Subscription Price
payable upon exercise of Rights exercised as contemplated by clause (a)
above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
Purchasers, would constitute a "person" or "group" as used in Section
13(d) or Section 14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5
promulgated thereunder, or any "affiliate" as defined in Rule 405
promulgated under the Securities Act of any of them (collectively, the
"Standby Class B Holders"), in the aggregate, to beneficially own on the
effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors or more than 49.0% of the total voting
power of the capital stock of Arch, Arch will substitute shares of Class
B Common Stock, par value $.01 per share, of Arch ("Arch Class B Common
Stock"), with such Arch Class B Common Stock having the terms set forth
in the form of Certificate of Amendment to Certificate of Incorporation
of Arch attached as Exhibit F to the Merger Agreement (the "Arch Charter
Amendment"), for shares of Existing Arch Common Stock so purchased on a
one-for-one basis such that on the Effective Date the Standby Class B
Holders, in the aggregate, will beneficially own shares representing not
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be
determined as provided in Rule 13d-3 and Rule 13d-5 promulgated under
the Exchange Act, except that a person or entity shall be deemed to have
"beneficial ownership" of all securities that such person or entity has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Rights Shares, as the case may be, are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such
Units or Rights Shares, as the case may be, pro rata based on the number
of Section 3(b) Rights resulting from their respective transfers.
Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
Northwestern Mutual Series Fund, Inc.
for the High Yield Bond Portfolio
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Vice President
Address: c/o The Northwestern Mutual Life
Insurance Company
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
for its Group Annuity Separate Account
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and The Northwestern Mutual Life Insurance Company for its
Group Annuity Separate Account. Terms used herein with initial capital letters
that are not otherwise defined shall have the meanings ascribed to such terms in
the Standby Commitment Letter.
The parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of the
Standby Commitment Letter is hereby amended in its entirety to read as follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B to the Merger Agreement (the "Arch Warrant Agreement") or (B)
if a Rights Offering Adjustment shall have occurred, warrants entitling
the holders thereof to purchase shares of Existing Arch Common Stock
("Arch Participation Warrants"), with such Arch Participation Warrants
to be issued pursuant to, and to have the terms set forth in, a warrant
agreement in the form attached as Exhibit B-1 to the Merger Agreement
(the "Arch Participation Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will
receive pursuant to the Plan (i) shares of Existing Arch Common Stock
and (ii) rights to purchase ("Rights") for cash either (A) if a Rights
Offering Adjustment shall not have occurred, units ("Units") consisting
of (x) shares of Existing Arch Common Stock and (y) Arch Warrants or (B)
if a Rights Offering Adjustment shall have occurred, shares of Existing
Arch Common Stock ("Rights Shares"); (d) holders of claims arising under
or relating to the Credit Agreement, dated December 4, 1995, as amended,
among MobileMedia and the other parties thereto ("Secured Claims"), to
the extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it as of the date hereof in respect
of which Rights are to be distributed, in each case as permitted by
Section 3 below, and (ii) the Rights sold or transferred by the Standby
Purchaser or the Rights distributed in respect of Unsecured Claims held
by it as of the date hereof that are hereafter sold or transferred by
the Standby Purchaser are not exercised prior to the expiration thereof
(at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based upon the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, identical Units or (y) if a Rights
Offering Adjustment shall have occurred, Rights Shares underlying, in
each case, such unexercised Rights, to the extent that the aggregate
purchase price therefor, together with the aggregate Subscription Price
payable upon exercise of Rights exercised as contemplated by clause (a)
above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights ) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
Purchasers, would constitute a "person" or "group" as used in Section
13(d) or Section 14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5
promulgated thereunder, or any "affiliate" as defined in Rule 405
promulgated under the Securities Act of any of them (collectively, the
"Standby Class B Holders"), in the aggregate, to beneficially own on the
effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors or more than 49.0% of the total voting
power of the capital stock of Arch, Arch will substitute shares of Class
B Common Stock, par value $.01 per share, of Arch ("Arch Class B Common
Stock"), with such Arch Class B Common Stock having the terms set forth
in the form of Certificate of Amendment to Certificate of Incorporation
of Arch attached as Exhibit F to the Merger Agreement (the "Arch Charter
Amendment"), for shares of Existing Arch Common Stock so purchased on a
one-for-one basis such that on the Effective Date the Standby Class B
Holders, in the aggregate, will beneficially own shares representing not
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be
determined as provided in Rule 13d-3 and Rule 13d-5 promulgated under
the Exchange Act, except that a person or entity shall be deemed to have
"beneficial ownership" of all securities that such person or entity has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Rights Shares, as the case may be, are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such
Units or Rights Shares, as the case may be, pro rata based on the number
of Section 3(b) Rights resulting from their respective transfers.
Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
The Northwestern Mutual Life
Insurance Company
for its Group Annuity Separate Account
By: Northwestern Investment
Management Company
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Managing Director
Address: 000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities
Department
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
--------------------------------
Name:
------------------------------
Its:
------------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
--------------------------------
Name:
------------------------------
Its:
------------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and The Northwestern Mutual Life Insurance Company. Terms
used herein with initial capital letters that are not otherwise defined shall
have the meanings ascribed to such terms in the Standby Commitment Letter. The
parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of the
Standby Commitment Letter is hereby amended in its entirety to read as follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B to the Merger Agreement
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
(the "Arch Warrant Agreement") or (B) if a Rights Offering Adjustment
shall have occurred, warrants entitling the holders thereof to purchase
shares of Existing Arch Common Stock ("Arch Participation Warrants"),
with such Arch Participation Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B-1 to the Merger Agreement (the "Arch Participation Warrant
Agreement"); (c) holders of unsecured non-priority claims against the
Debtors ("Unsecured Claims"), to the extent such Unsecured Claims are
Allowed (as defined in the Plan), will receive pursuant to the Plan (i)
shares of Existing Arch Common Stock and (ii) rights to purchase
("Rights") for cash either (A) if a Rights Offering Adjustment shall not
have occurred, units ("Units") consisting of (x) shares of Existing Arch
Common Stock and (y) Arch Warrants or (B) if a Rights Offering
Adjustment shall have occurred, shares of Existing Arch Common Stock
("Rights Shares"); (d) holders of claims arising under or relating to
the Credit Agreement, dated December 4, 1995, as amended, among
MobileMedia and the other parties thereto ("Secured Claims"), to the
extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
as of the date hereof in respect of which Rights are to be
distributed, in each case as permitted by Section 3 below, and (ii) the
Rights sold or transferred by the Standby Purchaser or the Rights
distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser
are not exercised prior to the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based upon the Subscription Price payable upon exercise of such
Rights) either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares underlying, in each case, such unexercised
Rights, to the extent that the aggregate purchase price therefor,
together with the aggregate Subscription Price payable upon exercise of
Rights exercised as contemplated by clause (a) above, does not exceed
the Rights Exercise Commitment Amount of the Standby Purchaser as set
forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights ) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby Purchasers, would
constitute a "person" or "group" as used in Section 13(d) or Section
14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated
thereunder, or any
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
"affiliate" as defined in Rule 405 promulgated under the Securities Act
of any of them (collectively, the "Standby Class B Holders"), in the
aggregate, to beneficially own on the effective date of the Plan (the
"Effective Date") shares representing more than 49.0% of the capital
stock of Arch generally entitled to vote in the election of directors or
more than 49.0% of the total voting power of the capital stock of Arch,
Arch will substitute shares of Class B Common Stock, par value $.01 per
share, of Arch ("Arch Class B Common Stock"), with such Arch Class B
Common Stock having the terms set forth in the form of Certificate of
Amendment to Certificate of Incorporation of Arch attached as Exhibit F
to the Merger Agreement (the "Arch Charter Amendment"), for shares of
Existing Arch Common Stock so purchased on a one-for-one basis such that
on the Effective Date the Standby Class B Holders, in the aggregate,
will beneficially own shares representing not more than 49.0% of the
capital stock of Arch generally entitled to vote in the election of
directors and not more than 49.0% of the total voting power of the
capital stock of Arch, all as provided in the Plan. For purposes of this
letter agreement, "beneficial ownership" shall be determined as provided
in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except
that a person or entity shall be deemed to have "beneficial ownership"
of all securities that such person or entity has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or Rights Shares, as the case
may be, are not so purchased, the Standby Purchaser and any Other
Standby Purchasers that are responsible for the existence of the Section
3(b) Rights
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
will be required to purchase such Units or Rights Shares, as the case
may be, pro rata based on the number of Section 3(b) Rights resulting
from their respective transfers. Nothing in this Section 3(b) will in
any way reduce the commitment of the Standby Purchaser specified in
Section 1(c) above or the Unexercised Rights Commitment Amount as set
forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
The Northwestern Mutual Life
Insurance Company
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Authorized Representative
Address: 000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Securities Department
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
X.X. XXXX ASSET MANAGEMENT CO., L.L.C.
00 Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and X.X. Xxxx Asset Management Co., L.L.C. Terms used
herein with initial capital letters that are not otherwise defined shall have
the meanings ascribed to such terms in the Standby Commitment Letter.
The parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of the
Standby Commitment Letter is hereby amended in its entirety to read as follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
forth in, a warrant agreement in the form attached as Exhibit B to the
Merger Agreement (the "Arch Warrant Agreement") or (B) if a Rights
Offering Adjustment shall have occurred, warrants entitling the holders
thereof to purchase shares of Existing Arch Common Stock ("Arch
Participation Warrants"), with such Arch Participation Warrants to be
issued pursuant to, and to have the terms set forth in, a warrant
agreement in the form attached as Exhibit B-1 to the Merger Agreement
(the "Arch Participation Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will
receive pursuant to the Plan (i) shares of Existing Arch Common Stock
and (ii) rights to purchase ("Rights") for cash either (A) if a Rights
Offering Adjustment shall not have occurred, units ("Units") consisting
of (x) shares of Existing Arch Common Stock and (y) Arch Warrants or (B)
if a Rights Offering Adjustment shall have occurred, shares of Existing
Arch Common Stock ("Rights Shares"); (d) holders of claims arising under
or relating to the Credit Agreement, dated December 4, 1995, as amended,
among MobileMedia and the other parties thereto ("Secured Claims"), to
the extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it as of the date hereof in respect
of which Rights are to be distributed, in each case as permitted by
Section 3 below, and (ii) the Rights sold or transferred by the Standby
Purchaser or the Rights distributed in respect of Unsecured Claims held
by it as of the date hereof that are hereafter sold or transferred by
the Standby Purchaser are not exercised prior to the expiration thereof
(at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based upon the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, identical Units or (y) if a Rights
Offering Adjustment shall have occurred, Rights Shares underlying, in
each case, such unexercised Rights, to the extent that the aggregate
purchase price therefor, together with the aggregate Subscription Price
payable upon exercise of Rights exercised as contemplated by clause (a)
above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights ) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
Purchasers, would constitute a "person" or "group" as used in Section
13(d) or Section 14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5
promulgated thereunder, or any "affiliate" as defined in Rule 405
promulgated under the Securities Act of any of them (collectively, the
"Standby Class B Holders"), in the aggregate, to beneficially own on the
effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors or more than 49.0% of the total voting
power of the capital stock of Arch, Arch will substitute shares of Class
B Common Stock, par value $.01 per share, of Arch ("Arch Class B Common
Stock"), with such Arch Class B Common Stock having the terms set forth
in the form of Certificate of Amendment to Certificate of Incorporation
of Arch attached as Exhibit F to the Merger Agreement (the "Arch Charter
Amendment"), for shares of Existing Arch Common Stock so purchased on a
one-for-one basis such that on the Effective Date the Standby Class B
Holders, in the aggregate, will beneficially own shares representing not
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be
determined as provided in Rule 13d-3 and Rule 13d-5 promulgated under
the Exchange Act, except that a person or entity shall be deemed to have
"beneficial ownership" of all securities that such person or entity has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Rights Shares, as the case may be, are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such
Units or Rights Shares, as the case may be, pro rata based on the number
of Section 3(b) Rights resulting from their respective transfers.
Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
X.X. Xxxx Asset Management Co., L.L.C.,
as agent for its separate accounts and affiliates
By:
--------------------------------
Name: Xxxxx X. Xxxxx, Esq.
Its: Attorney-in-Fact
Address: 00 Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
WHIPPOORWILL ASSOCIATES, INC.
00 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and Whippoorwill Associates, Inc., as general partner of
and/or as agent for, each Whippoorwill Account. Terms used herein with initial
capital letters that are not otherwise defined shall have the meanings ascribed
to such terms in the Standby Commitment Letter.
The parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of the
Standby Commitment Letter is hereby amended in its entirety to read as follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B to the Merger Agreement (the "Arch Warrant Agreement") or (B)
if a Rights Offering Adjustment shall have occurred, warrants entitling
the holders thereof to purchase shares of Existing Arch Common Stock
("Arch Participation Warrants"), with such Arch Participation Warrants
to be issued pursuant to, and to have the terms set forth in, a warrant
agreement in the form attached as Exhibit B-1 to the Merger Agreement
(the "Arch Participation Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will
receive pursuant to the Plan (i) shares of Existing Arch Common Stock
and (ii) rights to purchase ("Rights") for cash either (A) if a Rights
Offering Adjustment shall not have occurred, units ("Units") consisting
of (x) shares of Existing Arch Common Stock and (y) Arch Warrants or (B)
if a Rights Offering Adjustment shall have occurred, shares of Existing
Arch Common Stock ("Rights Shares"); (d) holders of claims arising under
or relating to the Credit Agreement, dated December 4, 1995, as amended,
among MobileMedia and the other parties thereto ("Secured Claims"), to
the extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it as of the date hereof in respect
of which Rights are to be distributed, in each case as permitted by
Section 3 below, and (ii) the Rights sold or transferred by the Standby
Purchaser or the Rights distributed in respect of Unsecured Claims held
by it as of the date hereof that are hereafter sold or transferred by
the Standby Purchaser are not exercised prior to the expiration thereof
(at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based upon the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, identical Units or (y) if a Rights
Offering Adjustment shall have occurred, Rights Shares underlying, in
each case, such unexercised Rights, to the extent that the aggregate
purchase price therefor, together with the aggregate Subscription Price
payable upon exercise of Rights exercised as contemplated by clause (a)
above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights ) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
Purchasers, would constitute a "person" or "group" as used in Section
13(d) or Section 14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5
promulgated thereunder, or any "affiliate" as defined in Rule 405
promulgated under the Securities Act of any of them (collectively, the
"Standby Class B Holders"), in the aggregate, to beneficially own on the
effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors or more than 49.0% of the total voting
power of the capital stock of Arch, Arch will substitute shares of Class
B Common Stock, par value $.01 per share, of Arch ("Arch Class B Common
Stock"), with such Arch Class B Common Stock having the terms set forth
in the form of Certificate of Amendment to Certificate of Incorporation
of Arch attached as Exhibit F to the Merger Agreement (the "Arch Charter
Amendment"), for shares of Existing Arch Common Stock so purchased on a
one-for-one basis such that on the Effective Date the Standby Class B
Holders, in the aggregate, will beneficially own shares representing not
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be
determined as provided in Rule 13d-3 and Rule 13d-5 promulgated under
the Exchange Act, except that a person or entity shall be deemed to have
"beneficial ownership" of all securities that such person or entity has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Rights Shares, as the case may be, are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such
Units or Rights Shares, as the case may be, pro rata based on the number
of Section 3(b) Rights resulting from their respective transfers.
Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
Whippoorwill Associates, Inc.,
as general partner of and/or agent for,
each Whippoorwill Account
By:
--------------------------------
Name:
-------------------------------
Its:
--------------------------------
Address: 00 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
--------------------------------
Name:
-------------------------------
Its:
--------------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
--------------------------------
Name:
-------------------------------
Its:
--------------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
CREDIT SUISSE FIRST BOSTON CORPORATION
00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 3, 1998
Arch Communications Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
MobileMedia Communications, Inc.
Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Amendment to Commitment
Gentlemen:
Reference is made to the letter agreement, dated August 18, 1998 (the
"Standby Commitment Letter"), among Arch Communications Group, Inc., MobileMedia
Communications, Inc. and Credit Suisse First Boston Corporation. Terms used
herein with initial capital letters that are not otherwise defined shall have
the meanings ascribed to such terms in the Standby Commitment Letter.
The parties hereto hereby agree as follows:
1. First Paragraph. The second sentence of the first paragraph of the
Standby Commitment Letter is hereby amended in its entirety to read as follows:
It is our understanding that in connection with the Reorganization,
among other things: (a) pursuant to the Agreement and Plan of Merger,
dated as of the date hereof (as amended by the First Amendment thereto
dated as of September 3, 1998 (the "Merger Agreement"), among Arch, a
wholly owned subsidiary of Arch ("Merger Sub"), Parent and MobileMedia,
MobileMedia will merge with and into Merger Sub, with Merger Sub
continuing as the surviving corporation and a wholly owned subsidiary of
Arch; (b) pursuant to the Merger Agreement, Arch will make available for
distribution pursuant to a plan of reorganization of the Debtors in the
form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause
(e) of Section 5 hereto (such plan of reorganization being referred to
herein as the "Plan"), (i) cash, (ii) shares of its Common Stock, par
value $.01 per share ("Existing Arch Common Stock"), and (iii) either
(A) if a Rights Offering Adjustment (as defined in Schedule II to the
Merger Agreement) shall not have occurred, warrants entitling the
holders thereof to purchase shares of Existing Arch Common Stock ("Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
Warrants"), with such Arch Warrants to be issued pursuant to, and to
have the terms set forth in, a warrant agreement in the form attached as
Exhibit B to the Merger Agreement (the "Arch Warrant Agreement") or (B)
if a Rights Offering Adjustment shall have occurred, warrants entitling
the holders thereof to purchase shares of Existing Arch Common Stock
("Arch Participation Warrants"), with such Arch Participation Warrants
to be issued pursuant to, and to have the terms set forth in, a warrant
agreement in the form attached as Exhibit B-1 to the Merger Agreement
(the "Arch Participation Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will
receive pursuant to the Plan (i) shares of Existing Arch Common Stock
and (ii) rights to purchase ("Rights") for cash either (A) if a Rights
Offering Adjustment shall not have occurred, units ("Units") consisting
of (x) shares of Existing Arch Common Stock and (y) Arch Warrants or (B)
if a Rights Offering Adjustment shall have occurred, shares of Existing
Arch Common Stock ("Rights Shares"); (d) holders of claims arising under
or relating to the Credit Agreement, dated December 4, 1995, as amended,
among MobileMedia and the other parties thereto ("Secured Claims"), to
the extent such Secured Claims are Allowed, will receive pursuant to the
Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled
without consideration and Parent will be dissolved; and (f) the
commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full
in cash. Arch will conduct the Stockholder Rights Offering, in which it
will issue to holders of Buyer Stock Stockholder Rights to acquire
shares of Existing Arch Common Stock if a Rights Offering Adjustment
shall have occurred, and, in addition, if a Rights Offering Adjustment
shall have occurred, immediately following the Combination, Arch will
issue Arch Participation Warrants to the stockholders of Arch to the
extent any Stockholder Rights issued to such Stockholder Rights Holder
were not exercised.
2. Section 1(a). Section 1(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase either
(i) if a Rights Offering Adjustment shall not have occurred, Units or
(ii) if a Rights Offering Adjustment shall have occurred, Rights Shares,
to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in
Annex I hereto;
3. Section 1(b).Section 1(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
(b) if (i) the Standby Purchaser sells or otherwise transfers any
or all of the (A) the Rights distributed to it in accordance with the
Plan or (B) Unsecured Claims held by it as of the date hereof in respect
of which Rights are to be distributed, in each case as permitted by
Section 3 below, and (ii) the Rights sold or transferred by the Standby
Purchaser or the Rights distributed in respect of Unsecured Claims held
by it as of the date hereof that are hereafter sold or transferred by
the Standby Purchaser are not exercised prior to the expiration thereof
(at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based upon the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, identical Units or (y) if a Rights
Offering Adjustment shall have occurred, Rights Shares underlying, in
each case, such unexercised Rights, to the extent that the aggregate
purchase price therefor, together with the aggregate Subscription Price
payable upon exercise of Rights exercised as contemplated by clause (a)
above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
4. Section 1(c). Section 1(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) if any Rights distributed in accordance with the Plan (other
than (i) Rights distributed to the Standby Purchaser or the other
holders of Unsecured Claims listed on Annex I hereto (the "Other Standby
Purchasers") and retained by them (which Rights are referred to in
Section 1(a) above and Section 1(a) of each of the Other Standby
Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of
Unsecured Claims held by the Standby Purchaser or the Other Standby
Purchasers as of the date hereof that are hereafter sold or transferred
by them (which Rights are referred to in Sections 1(b) and 3 hereof and
Sections 1(b) and 3 of each of the Other Standby Purchase Commitments))
remain unexercised upon the expiration thereof (at which time such
Rights will be void and will no longer be exercisable), to purchase for
cash (based on the Subscription Price payable upon exercise of such
Rights ) pro rata in accordance with and up to the Unexercised Rights
Commitment Amount of the Standby Purchaser as set forth in Annex I
hereto either (x) if a Rights Offering Adjustment shall not have
occurred, identical Units or (y) if a Rights Offering Adjustment shall
have occurred, Rights Shares, underlying, in each case, such unexercised
Rights.
5. Section 2(a). Section 2(a) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(a) Notwithstanding anything to the contrary herein contained, if
the purchases by the Standby Purchaser contemplated by Section 1 above
would cause the Standby Purchaser, the Other Standby Purchasers, and any
other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
Purchasers, would constitute a "person" or "group" as used in Section
13(d) or Section 14(d) of the Exchange Act or Rule 13d-3 or Rule 13d-5
promulgated thereunder, or any "affiliate" as defined in Rule 405
promulgated under the Securities Act of any of them (collectively, the
"Standby Class B Holders"), in the aggregate, to beneficially own on the
effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors or more than 49.0% of the total voting
power of the capital stock of Arch, Arch will substitute shares of Class
B Common Stock, par value $.01 per share, of Arch ("Arch Class B Common
Stock"), with such Arch Class B Common Stock having the terms set forth
in the form of Certificate of Amendment to Certificate of Incorporation
of Arch attached as Exhibit F to the Merger Agreement (the "Arch Charter
Amendment"), for shares of Existing Arch Common Stock so purchased on a
one-for-one basis such that on the Effective Date the Standby Class B
Holders, in the aggregate, will beneficially own shares representing not
more than 49.0% of the capital stock of Arch generally entitled to vote
in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be
determined as provided in Rule 13d-3 and Rule 13d-5 promulgated under
the Exchange Act, except that a person or entity shall be deemed to have
"beneficial ownership" of all securities that such person or entity has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
6. Section 3(b). Section 3(b) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(b) Notwithstanding the provisions of clause (Y) of the proviso
in Section 3(a) above, the Standby Purchaser may elect to sell or
otherwise transfer (i) any or all of the Rights distributed to it in
accordance with the Plan or (ii) Unsecured Claims in respect of which
Rights are to be so distributed, in either case without entering into a
Tracking Agreement with its transferee or transferees (any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred, together with any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby
Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration
thereof will be deemed to be "Section 3(b) Rights" up to, but not
exceeding, the amount of Untracked Rights. The Section 3(b) Rights shall
be exercised as follows prior to the application of Section 1(c) above
and Section 1(c) of the Other Standby Purchase Commitments: (A) the
Standby Purchaser and the Other Standby Purchasers will first be given
the opportunity to purchase for cash (based on the Subscription Price
payable upon exercise of such Rights) either (x) if a Rights Offering
Adjustment shall not have occurred, Units or (y) if a Rights Offering
Adjustment shall have occurred, Rights Shares, underlying, in each case,
a number of unexercised Rights up to the amount of Section 3(b) Rights
in accordance with the percentages set forth in Column D of Annex I
hereto and (B) to the extent such Units or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Rights Shares, as the case may be, are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such
Units or Rights Shares, as the case may be, pro rata based on the number
of Section 3(b) Rights resulting from their respective transfers.
Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
7. Section 4. Section 4 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
4. The Closing. (a) Notwithstanding anything to the contrary
herein contained or the terms of the Rights or the Plan, subject to the
conditions set forth herein, on the Effective Date the Standby
Purchaser, in satisfaction of the Commitment, will deliver at the
Closing (i) the aggregate Subscription Price payable upon exercise of
any Rights exercised by it and (ii) the purchase price payable in
consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and, if a Rights Offering
Adjustment shall not have occurred, Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
requested by the Standby Purchaser in writing at least two business days
prior to the Effective Date, any cash to be distributed to the Standby
Purchaser in respect of Allowed Secured Claims pursuant to the Plan
will, prior to the distribution thereof pursuant to the Plan and in
accordance with the instructions included in such written request, be
first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section
4(a).
(b) Upon payment of the amounts payable as provided in Section
4(a), on the Effective Date at the Closing Arch will deliver to the
Standby Purchaser (or its designees) certificates representing the
shares of Existing Arch Common Stock, shares of Arch Class B Common
Stock, if applicable, and, if a Rights Offering Adjustment shall not
have occurred, the Arch Warrants, in each case, (i) issuable upon
exercise of any Rights exercised by the Standby Purchaser or (ii)
otherwise purchased by the Standby Purchaser pursuant to the Commitment.
At the Closing, Arch will also deliver to the Standby Purchaser (or its
designees) certificates representing the Arch Warrants or Arch
Participation Warrants, as the case may be, contemplated by Section 7
below.
(c) (i) Arch will deliver to the Standby Purchaser two business
days after the expiration of the Stockholder Rights Offering a written
notice which shall (A) specify the amounts payable at the Closing by it
in satisfaction of the Commitment (without taking into account Section
4(e) below), (B) specify the Maximum Reduction Number (as defined in
Section 4(e) below, (C) specify the last date on which the notice
referred to in Section 4(c) (ii) below may be delivered, and (D)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(ii) Within 10 business days after its receipt of the
notice referred to in Section 4(c)(i) above, the Standby Purchaser will
deliver to Arch and MobileMedia a written notice which shall set forth
the Elected Reduction Number (as defined in Section 4(e) below)
determined by the Standby Purchaser in accordance with Section 4(e)
below.
(d) (i) Arch will deliver to the Standby Purchaser at least five
business days prior to the Effective Date a written notice which shall
specify the date on which the Effective Date is to occur and the last
date on which the notice referred to in Section 4(d)(ii) below may be
delivered.
(ii) At least two business days prior to the Effective
Date, the Standby Purchaser will deliver to Arch and MobileMedia a
written notice which shall set forth the number of shares of Existing
Arch Common Stock beneficially owned by it as of such date. During the
period from the date of such notice through the Effective Date, neither
the Standby Purchaser nor any affiliate thereof shall acquire beneficial
ownership of, or any rights to acquire, any additional shares of
Existing Arch Common Stock or any Unsecured Claim.
(e) If a Rights Offering Adjustment shall have occurred,
notwithstanding anything to the contrary herein contained, the Standby
Purchaser may elect to reduce the number of Rights Shares required to be
purchased by the Standby Purchaser in satisfaction of its Commitment by
a number (the "Elected Reduction Number") of Rights Shares equal to or
less than the product of (i) the number of shares of Existing Arch
Common Stock to be issued by Arch in the Stockholder Rights Offering and
(ii) the percentage in Column D of Annex I hereto specified opposite the
Standby Purchaser's name (such product being referred to herein as the
"Maximum Reduction Number"). Subject to the immediately preceding
sentence, the Standby Purchaser shall determine the Elected Reduction
Number in its sole discretion.
8. Section 5(c). Section 5(c) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(c) there shall be effective under the Securities Act, a
registration statement (the "Shelf Registration Statement") covering the
resale by the Standby Purchaser of (i) all shares of Existing Arch
Common Stock, all shares of Arch Class B Common Stock, if applicable,
and, if a Rights Offering Adjustment shall not have occurred, all Arch
Warrants received by the Standby Purchaser as a result of the
transactions contemplated by the Plan (including those received upon the
exercise of Rights and pursuant to this letter agreement), (ii) if a
Rights Offering Adjustment shall have occurred, all Arch Participation
Warrants received by the Standby Purchaser pursuant to this letter
agreement, and (iii) all shares of Existing Arch Common Stock issuable
upon conversion of any such shares of the Arch Class B Common Stock or
exercise of any such Arch Warrants or Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Participation Warrants, as the case may be (the securities referred to
in the foregoing clauses (i), (ii) and (iii) are referred to herein as
the "Registrable Securities");
9. Section 5(e). Section 5(e) of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
(e) any and all amendments or modifications to the Merger
Agreement or any exhibit or schedule thereto (including without
limitation the Plan, the Arch Charter Amendment, the Arch Warrant
Agreement, the Arch Participation Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
waivers delivered on or after the date hereof by Arch or MobileMedia to
the other under the Merger Agreement (other than (i) subject to Section
15(a) below, consents under Section 4.5 of the Merger Agreement, (ii)
waivers of Unilateral Conditions or (iii) any amendment to the Merger
Agreement solely to reduce the amount of the Buyer Breakup Fee) shall
have been in form and substance reasonably satisfactory to the Standby
Purchaser;
10. Section 5(j). Section 5(j) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement shall be so issued and distributed pursuant to an
exemption from registration under the Securities Act provided by Section
1145 of the Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B)
the issuance of the shares of Existing Arch Common Stock, the shares of
Arch Class B Common Stock, if applicable, and, if a Rights Offering
Adjustment shall not have occurred, the Arch Warrants upon exercise of
the Rights, (C) the issuance to the Standby Purchaser of the shares of
Existing Arch Common Stock, the shares of Arch Class B Common Stock, if
applicable, and, if a Rights Offering Adjustment shall not have
occurred, the Arch Warrants as contemplated by Section 1 and Section 3
above and the Arch Warrants or Arch Participation Warrants, as the case
may be, as contemplated by Section 7 below, and (D) the issuance of
Existing Arch Common Stock upon exercise of the Arch Warrants or Arch
Participation Warrants, as the case may be, or conversion of Arch Class
B Common Stock, if applicable, shall be covered by the Registration
Statement, the Registration Statement shall have been declared effective
and no stop order with respect thereto shall be in effect;
11. Section 5(m) of the Standby Commitment Letter is hereby deleted.
12. Section 7. Section 7 of the Standby Commitment Letter is hereby
amended in its entirety to read as follows:
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
Consideration for the Commitment. In consideration for the
Commitment, on the Effective Date at the Closing the Standby Purchaser
will receive its pro rata share of either (a) if a Rights Offering
Adjustment shall not have occurred, Arch Warrants entitling the holders
thereof to purchase, in the aggregate, a number of shares of Existing
Arch Common Stock equal to 2.50% of the issued and outstanding shares of
Existing Arch Common Stock and, if applicable, Arch Class B Common
Stock, computed on a Fully Diluted Basis (as defined in the Plan) on the
date the "Initial Buyer Market Price" is determined in accordance with
Schedule II to the Merger Agreement giving effect to the Plan as if the
Effective Date had occurred on such date and assuming 21,067,110 shares
of Existing Arch Common Stock are issued and outstanding immediately
prior thereto or (b) if a Rights Offering Adjustment shall have
occurred, Arch Participation Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common
Stock equal to 2.50% of the issued and outstanding shares of Existing
Arch Common Stock and, if applicable, Arch Class B Common Stock,
computed on a Fully Diluted Basis on the Rights Offering Adjustment
Determination Date giving effect to the Plan as if the Effective Date
had occurred on such date and assuming 21,067,110 shares of Existing
Arch Common Stock are issued and outstanding immediately prior thereto.
Such Arch Warrants or Arch Participation Warrants, as the case may be,
will be delivered to the Standby Purchaser and the Other Standby
Purchasers, in accordance with the percentages specified in Column D of
Annex I hereto.
13. Section 9(a)(x). Section 9(a)(x) of the Standby Commitment Letter is
hereby amended in its entirety to read as follows:
(a)(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and either the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above and the Arch Warrants to be issued as contemplated by
Section 7 above or, if a Rights Offering Adjustment shall have occurred,
the Arch Participation Warrants to be issued as contemplated by Section
7 above, in each case, when so issued and distributed or delivered, as
the case may be, and the shares of Existing Arch Common Stock issued
upon conversation of such shares of Arch Class B Common Stock, if
applicable, when so converted in accordance with the Arch Charter
Amendment, and either, if a Rights Offering Adjustment shall not have
occurred, the shares of Existing Arch Common Stock issued upon exercise
of such Arch Warrants, when issued, paid for and delivered as provided
in the Arch Warrant Agreement or, if a Rights Offering Adjustment shall
have occurred, the shares of Existing Arch Common Stock issued upon
exercise of Arch Participation Warrants, when issued, paid for and
delivered as provided in the Arch Participation Warrant Agreement, will
be duly authorized, validly issued, fully paid, nonassessable and free
of all preemptive rights; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
14. Section 11. Section 11 of the Standby Commitment Letter is hereby
amended to change the reference therein to "Exhibit D" to a reference to
"Exhibit D-1."
15. Schedule A to Annex I. Schedule A to Annex I to the Standby
Commitment Letter is hereby amended to read in its entirety as Schedule A
hereto.
16. Continuation of Standby Commitment Letter. Except as specifically
amended hereby, the Standby Commitment Letter shall continue in full force and
effect and is hereby certified and confirmed in all respects.
17. Consent to Amendments. The Standby Purchaser hereby (a) consents to
the amendments to the Other Standby Purchase Commitments to be effected by the
letter agreements attached as Exhibit C-1 hereto, which amendments shall be
entered into simultaneously herewith, (b) consents to (i) the First Amendment
dated as of September 3, 1998 to the Merger Agreement and each of the exhibits
attached thereto and (ii) the Second Amended Joint Plan of Reorganization dated
as of September 4, 1998 and each of the exhibits attached thereto, and (c)
agrees that the form and substance thereof are reasonably satisfactory to the
Standby Purchaser.
18. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its principles of conflicts of law.
19. Counterparts. This letter agreement may be executed in counterparts
which, taken together, shall constitute one and the same instrument.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
If the foregoing accurately reflects your understanding with respect to
the matters set forth herein, please confirm by executing and returning a copy
of this letter to the undersigned.
Very truly yours,
Credit Suisse First Boston Corporation
By:
-----------------------------------
Name: Xxxx Xxxxxxx
Its: Director
Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Xxxx Xxxxxxx
With a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
ACCEPTED AND AGREED TO:
Arch Communications Group, Inc.
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Address: 0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chairman and Chief
Executive Officer
With copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxxxx
Subject to entry of the Confirmation Order:
MobileMedia Communications, Inc.
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Address: Fort Xxx Executive Park
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxx, XX 00000
Attn: Chairman - Restructuring
With a copy to: Sidley & Austin
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
