EXHIBIT 2.3
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Second Amendment, dated as of December 1, 1998 (this "Amendment"), to
the Agreement and Plan of Merger, dated as of August 18, 1998 (as amended by the
First Amendment thereto dated September 3, 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 (as heretofore amended)
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is hereby further amended to delete the reference to "Debtor's Second Amended
Joint Plan of Reorganization" and replace such reference with a reference to
"Debtors' Third Amended Joint Plan of Reorganization" and to delete the
reference to "August 20, 1998" and replace such reference with a reference to
"December 2, 1998".
2. Recital E. Recital E of the Merger Agreement (as heretofore amended)
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is hereby further 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 ("Rights") to purchase shares of Common
Stock, $0.01 par value per share, of the Buyer ("Buyer Common Stock") or
shares of Buyer Class B Common Stock (as defined in Section 3.1(b)), 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 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 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
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the same may be amended from time to time, the "Registration Rights
Agreement").
3. Recital F. Recital F of the Merger Agreement (as heretofore amended)
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is hereby further amended to read in its entirety as follows:
F. The Buyer will conduct the Stockholder Rights Offering (as defined in
Section 4.22), in which it will issue to holders of Buyer Common Stock and
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"), 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,
Stockholder Rights will transfer with the underlying shares in respect of
which Stockholder Rights are distributed) to acquire an aggregate of
44,893,166 shares of Buyer Common Stock. In connection therewith,
immediately following the Merger, the Buyer will distribute to the
stockholders of the Buyer Participation Warrants to purchase an aggregate
number of shares of Buyer Common Stock equal to the excess of 44,893,166
over the number of shares of Buyer Common Stock issued upon exercise of
Stockholder Rights issued in the Stockholder Rights Offering (such
distribution being referred to herein as the "Buyer Distribution").
4. Section 1.3. Section 1.3 of the Merger Agreement (as heretofore
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amended) is hereby further amended to read in its entirety as follows:
1.3 Actions at the Closing. At the Closing, (a) the Parent and the
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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 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, $479,000,000 in immediately available funds, (B) to
the Company (or, from and after the Effective Time, the Surviving
Corporation) 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
14,344,969 shares of Buyer Common Stock (the "Plan Shares") to be
distributed as contemplated by Section 1.6(b), (ii) the Buyer shall issue
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the shares of Buyer Common Stock (and Buyer Class B Common Stock, if
applicable) purchased through the exercise of the Rights (with the number
of such shares not to exceed 108,500,000 in the
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aggregate), and (iii) the Buyer shall issue the shares of Buyer Common
Stock purchased through the exercise of Stockholder Rights (with the number
of such shares not to exceed 44,893,166 in the aggregate) and the Buyer
shall effect the Buyer Distribution.
5. Section 1.7. Section 1.7 of the Merger Agreement (as heretofore
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amended) is hereby further amended to read in its entirety as follows:
1.7 Distribution to Holders of Buyer Common Stock.
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(a) The Buyer shall conduct the Stockholder Rights Offering in accordance
with Section 4.22, and the Buyer shall, as soon as practicable after the
occurrence of the Effective Time, declare and make the Buyer Distribution.
(b) Notwithstanding the foregoing, no fractional Buyer Participation
Warrants shall be issued in the Buyer Distribution; in lieu thereof,
fractional Buyer Participation Warrants that would otherwise be issued in
the Buyer Distribution will be rounded up or down to the nearest whole
number of Buyer Participation Warrants.
6. Section 3.1(b). Section 3.1(b) of the Merger Agreement (as heretofore
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amended) is hereby further 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, (iii) the issuance of shares of Buyer Common Stock upon the
exercise of Stockholder Rights issued pursuant to the Stockholder Rights
Offering, and (iv) 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
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Buyer Common Stock upon exercise of any of the foregoing Buyer
Participation Warrants.
7. Section 3.2(e). Section 3.2(e) of the Merger Agreement (as heretofore
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amended) is hereby further 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) the Buyer Participation
Warrants to be issued and delivered as contemplated by the Standby Purchase
Commitments and pursuant to the Buyer Distribution, in either case, when so
issued and distributed or delivered, as the case may be, and (vi) 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.
8. Section 3.23(b). Section 3.23(b) of the Merger Agreement (as
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heretofore amended) is hereby further amended to read in its entirety as
follows:
(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 Participation Warrants 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 Participation Warrants), including for purposes
of Section 203 of the DGCL.
9. Section 4.4(b). Section 4.4(b) of the Merger Agreement is hereby
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amended (i) to delete the reference to "August 20, 1998" and replace such
reference with a reference to "December 2, 1998" and (ii) to delete the
reference to "August 24, 1998" and replace such reference with a reference to
"December 3, 1998".
10. Section 4.9. Section 4.9 of the Merger Agreement (as heretofore
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amended) is hereby further amended to read in its entirety as follows:
4.9 Nasdaq National Market Quotation. The Buyer shall use its best
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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 Participation Warrants) to be issued as contemplated
by the Amended Plan and this Agreement approved for quotation on the Nasdaq
National Market prior to the Closing.
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11. Section 4.20(a). Section 4.20(a) of the Merger Agreement (as
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heretofore amended) is hereby further amended to read in its entirety as
follows:
(a) As specified in the Amended Plan, the Buyer will offer (the "Rights
Offering") to the holders of certain Allowed Claims as specified in the
Amended Plan, pursuant to the Rights, the opportunity to purchase, for
consideration of $2.00 per share in cash (the "Subscription Price"), an
aggregate of 108,500,000 shares of Buyer Common Stock and Buyer Class B
Common Stock, if applicable ("Rights Shares"). The Rights Offering will be
made substantially on the terms set forth in Schedule III hereto.
12. Section 4.22. Section 4.22 of the Merger Agreement is hereby amended
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to read in its entirety as follows:
4.22 Stockholder Rights Offering. The Buyer will offer (the "Stockholder
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Rights Offering") to the Stockholder Rights Holders, pursuant to the
Stockholder Rights, the opportunity to purchase, for the Subscription
Price, an aggregate of 44,893,166 shares of Buyer Common Stock. The
Stockholder Rights Offering will be made substantially on the terms set
forth in Schedule IV hereto.
13. Section 5.1(g). Section 5.1(g) of the Merger Agreement (as heretofore
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amended) is hereby further 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 exercise of the Buyer
Participation Warrants) to be issued as contemplated by the Amended Plan
and this Agreement shall have been approved for quotation on the Nasdaq
National Market;
14. Section 6.1(c). Section 6.1(c) of the Merger Agreement is hereby
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amended to read in its entirety as follows:
(c) after June 30, 1999, the Buyer may terminate this Agreement by giving
written notice to the Company if the Closing shall not have occurred on or
before such date (unless the failure results primarily from a breach by the
Buyer of any representation, warranty or covenant contained in this
Agreement);
15. Section 6.1(d). Section 6.1(d) of the Merger Agreement is hereby
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amended to read in its entirety as follows:
(d) after June 30, 1999, the Company may terminate this Agreement by
giving written notice to the Buyer if the Closing shall not have occurred
on or before such date (unless the failure results primarily from a breach
by the Company of any representation, warranty or covenant contained in
this Agreement);
16. New Section 8.18. Article VIII of the Merger Agreement is hereby
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amended to add the following Section 8.18 at the end thereof:
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8.18 Reverse Stock Split. Notwithstanding anything to the contrary herein
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contained, if the Buyer effects the reverse stock split contemplated by
Section 4.5 of the Buyer Disclosure Schedule (the "Reverse Stock Split")
prior to or simultaneously with the Closing, (a)(i) the number of Plan
Shares, (ii) the number of Rights Shares, and (iii) the number of shares of
Buyer Common Stock issuable upon exercise of Stockholder Rights or Buyer
Participation Warrants issued pursuant to the Buyer Distribution will be
adjusted, in each case, to a number equal to the product of (x) the number
provided therefor herein and (y) the Adjustment Fraction and (b) the
Subscription Price will be adjusted to a price equal to the product of (x)
$2.00 and (y) the Inverse Adjustment Fraction. For purposes of this
Section 8.18, the term "Adjustment Fraction" means a fraction, the
numerator of which is the total number of shares of Buyer Common Stock
issued and outstanding immediately following the effectiveness of the
Reverse Stock Split and the denominator of which is the total number of
shares of Buyer Common Stock issued and outstanding immediately prior to
the effectiveness of the Reverse Stock Split (provided, however, that, if
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the Reverse Stock Split occurs simultaneously with the Closing, shares of
Buyer Common Stock issued in connection with the Closing will not be
treated as outstanding for purposes of determining the numerator or
denominator of such fraction), and the term "Inverse Adjustment Fraction"
means a fraction that is the inverse of the Adjustment Fraction.
17. Amended Exhibit A. Exhibit A to the Merger Agreement (as heretofore
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amended) is hereby further amended to read in its entirety as Exhibit A hereto.
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18. Deletion of Exhibit B. Exhibit B to the Merger Agreement is hereby
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deleted in its entirety.
19. Amended Exhibit F. Exhibit F to the Merger Agreement (as heretofore
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amended) is hereby further amended to read in its entirety as Exhibit F hereto.
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20. Amended Exhibit B-1. Exhibit B-1 to the Merger Agreement (as
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heretofore amended) is hereby further amended to read in its entirety as Exhibit
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B-1 hereto.
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21. Deletion of Schedule II. Schedule II to the Merger Agreement is
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hereby deleted in its entirety.
22. Amended Schedule III. Schedule III to the Merger Agreement (as
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heretofore amended) is hereby further amended to read in its entirety as
Schedule III hereto.
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23. Amended Schedule IV. Schedule IV to the Merger Agreement (as
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heretofore amended) is hereby further amended to read in its entirety as
Schedule IV hereto.
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24. Supplement to Buyer Disclosure Schedule. Parent and the Company
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hereby consent to the supplement to Section 4.5 of the Buyer Disclosure Schedule
attached as Annex I hereto.
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25. Continuation of Merger Agreement. Except as specifically amended
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hereby, the Merger Agreement shall continue in full force and effect and is
hereby ratified and confirmed in all respects. From and after the execution and
delivery of this Amendment, each reference in the Merger Agreement to "this
Agreement," "hereunder," "hereof," "herein" and words of like import shall be
deemed to refer to the Merger Agreement as amended by this Amendment.
26. Governing Law. This Amendment shall be governed by and construed in
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accordance with the internal laws (and not the law of conflicts) of the State of
Delaware.
27. Counterparts. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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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: /s/ J. Xxx Xxxxxx
_______________________
Name: J. Xxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
FARM TEAM CORP.
By: /s/ J. Xxx Xxxxxx
_______________________
Name: J. Xxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUBJECT TO THE RECEIPT OF THE CONFIRMATION ORDER
FROM THE BANKRUPTCY COURT WITH RESPECT TO THE
AMENDED PLAN:
MOBILEMEDIA CORPORATION
By: /s/ Xxxxxx X. Xxxxx
_______________________
Name: Xxxxxx X. Xxxxx
Title: Chairman - Restructuring
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
_______________________
Name: Xxxxxx X. Xxxxx
Title: Chairman - Restructuring
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