General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 11 60K
2: EX-1 Underwriting Agreement 1 7K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 51 208K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 22 55K
5: EX-4 Instrument Defining the Rights of Security Holders 15 59K
6: EX-5 Opinion re: Legality 14 54K
7: EX-6 Opinion re: Discount on Capital Shares 14 51K
EX-6 — Opinion re: Discount on Capital Shares
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EXHIBIT 6
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
METROCALL HOLDINGS, INC.
COMMON STOCK PURCHASE WARRANT
No. W-2 November 18, 2003
Warrant to Purchase 25,000
Shares of Common Stock
METROCALL HOLDINGS, INC., a Delaware corporation (the "Company"), for
value received, hereby certifies that WebLink Wireless I, L.P., a Texas limited
partnership, or registered assigns (the "Holder"), is entitled to purchase from
the Company an aggregate of 25,000 duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock, par value $.01 per share, of the
Company (the "Common Stock"), at an exercise price equal to $40.00 per share
(the "Purchase Price"), at any time or from time to time from and after the date
hereof and prior to 5:00 P.M., New York City time, on the third anniversary of
the date hereof (the "Expiration Date"), all subject to the terms, conditions
and adjustments set forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants
(collectively, the "Warrants", such term to include any such warrants issued in
substitution therefor) issued pursuant to the terms of the Management and
Spectrum License Agreement, dated as of November 18, 2003 (the "Management and
Spectrum License Agreement"), by and among Metrocall, Inc. ("Metrocall"),
WebLink and WebLink Wireless, Inc., a Delaware corporation ("WebLink Parent"),
(the "Management Agreement") and/or the Asset Purchase Agreement, dated November
18, 2003, by and among the Company, Metrocall, the Holder and WebLink Parent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned such terms in the Management Agreement.
1. Definitions. As used herein, unless the context otherwise
requires, the following terms shall have the meanings indicated:
NY2:\1342752\02\SS2_02!.DOC\76830.0256
"Additional Shares of Common Stock" shall mean, all shares (including
treasury shares) of Common Stock issued or sold or deemed to be issued by the
Company after the date hereof, whether or not subsequently reacquired or retired
by the Company other than (i) Common Stock issued as a stock dividend to holders
of Common Stock or upon any subdivision or combination of shares of Common Stock
pursuant to Section 3.1, (ii) shares of Common Stock issued upon exercise of the
Warrants or issued upon conversion or exercise of any other currently
outstanding securities of the Company pursuant to the terms of such securities,
(iii) any Rights, and (iv) shares of Common Stock representing up to 10% of the
then-outstanding Common Stock issued pursuant to Approved Stock Plans.
"Approved Stock Plan" shall mean any contract, plan or agreement
which has been approved by the Board of Directors of the Company, pursuant to
which the Company's securities may be issued to any employee, officer or
director of, or consultant or other service provider to, the Company for
services provided to the Company.
"Asset Purchase Agreement" shall have the meaning assigned to it in
the introduction to this Warrant.
"Business Day" shall mean any day other than a Saturday or a Sunday
or a day on which commercial banking institutions in the City of New York are
authorized by law to be closed. Any reference to "days" (unless Business Days
are specified) shall mean calendar days.
"Closing Bid Price" shall mean for any security as of any date, the
closing bid price of such security on the principal securities exchange or
trading market where such security is listed or traded as reported by Bloomberg,
L.P. ("Bloomberg"), or if the foregoing does not apply, the closing bid price of
such security in the over-the-counter market on the electronic bulletin board
for such security as reported by Bloomberg, or, if no closing bid price is
reported for such security by Bloomberg, the average of the bid prices of any
market makers for such security as reported in the "pink sheets" by the National
Quotation Bureau, Inc. If the Closing Bid Price cannot be calculated for such
security on such date, as set forth above, the Closing Bid Price of such
security shall be the fair market value as determined in good faith by an
investment banking firm selected jointly by the Company and the Holders, with
the fees and expenses of such determination borne solely by the Company.
"Commission" shall mean the Securities and Exchange Commission or any
successor agency having jurisdiction to enforce the Securities Act.
"Common Stock" shall have the meaning assigned to it in the
introduction to this Warrant, such term to include any stock into which such
Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock, and all other stock of any class or
classes (however designated) of the Company the holders of which have the right,
without limitation as to amount, either to all or to a share of the balance of
current dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference.
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"Company" shall have the meaning assigned to it in the introduction
to this Warrant, such term to include any corporation or other entity which
shall succeed to or assume the obligations of the Company hereunder in
compliance with Section 4.
"Convertible Securities" shall mean any options, warrants, or other
rights to subscribe for, or securities convertible into or exchangeable or
exercisable for Additional Shares of Common Stock.
"Current Market Price" shall mean, on any date specified herein, the
average of the daily Closing Bid Prices for the Common Stock during the 5
consecutive trading days commencing 10 trading days before such date, except
that, if on any such date the shares of Common Stock are not listed or admitted
for trading on any national securities exchange or quoted in the
over-the-counter market, the Current Market Price shall be the Fair Value on
such date.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Expiration Date" shall have the meaning assigned to it in the
introduction to this Warrant.
"Fair Market Price" shall mean, on any date specified herein, fair
value per share of Common Stock in United States currency determined in good
faith by the Board of Directors of the Company.
"Fair Value" shall mean, on any date specified herein (i) in the case
of cash, the dollar amount thereof, (ii) in the case of a security admitted for
trading on any national securities exchange or quoted in the over-the-counter
market, the Current Market Price, and (iii) in all other cases as reasonably
determined in good faith by the Board of Directors of the Company.
"Management Agreement" shall have the meaning assigned to it in the
introduction to this Warrant.
"Options" shall mean any rights, options or warrants to subscribe
for, purchase or otherwise acquire either Additional Shares of Common Stock or
Convertible Securities.
"Other Securities" shall mean any stock (other than Common Stock) and
other securities of the Company or any other Person (corporate or otherwise)
which the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 3 or otherwise.
"Person" shall mean any individual, firm, partnership, corporation,
trust, joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such entity.
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"Purchase Price" shall mean the amount per share indicated in the
introductory paragraph to this Warrant, subject to adjustment and readjustment
from time to time as provided in Section 3, and, as so adjusted or readjusted,
shall remain in effect until a further adjustment or readjustment thereof is
required by Section 3.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement dated as of November 18, 2003, substantially in the form of Exhibit B
to the Asset Purchase Agreement.
"Rights" means any "poison pill" rights pursuant to a "poison pill"
shareholder rights plan;
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder, or any successor
statute.
"Warrants" shall have the meaning assigned to it in the introduction
to this Warrant.
"WebLink Wireless" shall mean PageMart II Holdings LLC, PageMart PCS
Holdings LLC, WebLink Wireless I, L.P. and WebLink Wireless, Inc.
2.1 Exercise of Warrant.
(a) This Warrant may be exercised by the Holder, in whole or in part,
at any time or from time to time on or after the date first above written and
prior to the Expiration Date, by surrendering to the Company at its principal
office (or such other office or agency of the Company as the Company may
designate in a written notice to the Holder) this Warrant, together with the
form of Election to Purchase Shares attached hereto as Exhibit A (or a
reasonable facsimile thereof) duly executed by the Holder and accompanied by
payment of the Purchase Price as described below for the number of shares of
Common Stock specified in such form.
(b)Payment of the Purchase Price may be made as follows (or by any
combination of the following):
(i) in United States currency by cash or delivery of a certified
check or bank draft payable to the order of the Company or by wire
transfer to the account of the Company,
(ii) by cancellation of such number of the shares of Common Stock
otherwise issuable to the Holder upon such exercise as shall be
specified in such Election to Purchase Shares, such that the excess of
the Current Market Price of such specified number of shares on the
date of exercise over the portion of the Purchase Price attributable
to such shares shall equal the Purchase Price attributable to the
shares of Common Stock to be issued upon such exercise, in which case
upon delivery of such notice such amount shall be deemed to have been
paid to the Company and the number of shares issuable upon such
exercise shall be reduced by such specified number, or
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(iii) by surrender to the Company for cancellation, certificates
representing shares of Common Stock of the Company owned by the Holder
(properly endorsed for transfer in blank) having a Current Market
Price on the date of Warrant exercise.
2.2. When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to, and the
Purchase Price shall have been received by, the Company as provided in Section
2.1, and at such time the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock (or Other Securities)
shall be issuable upon such exercise as provided in Section 2.3 shall be deemed
to have become the holder or holders of record thereof for all purposes.
2.3. Delivery of Stock Certificates, etc.; Charges, Taxes and
Expenses. Subject to Section 2.4(a) as soon as practicable after each exercise
of this Warrant, in whole or in part, and in any event within three Business
Days thereafter, the Company shall cause to be issued in such denominations as
may be requested by Holder in the Election to Purchase Shares, in the name of
and delivered to the Holder or, subject to the Asset Purchase Agreement and the
Management Agreement, as the Holder may direct,
(i) a certificate or certificates, or, if then permissible under
the Securities Act, at a Holder's request to electronically issue such
shares (e.g., through DWAC or DTC), for the number of shares of Common
Stock (or Other Securities) to which the Holder shall be entitled upon
such exercise plus, in lieu of issuance of any fractional share to
which the Holder would otherwise be entitled, if any, a certified
check for the amount of cash equal to the same fraction multiplied by
the Current Market Price per share on the date of Warrant exercise,
provided, however, that in the event sufficient funds are not legally
available for the payment of such amount, the number of shares of
Common Stock for which such certificate(s) represents shall be rounded
up to the nearest whole number, and
(ii) in case such exercise is for less than all of the shares of
Common Stock purchasable under this Warrant, a new Warrant or Warrants
of like tenor, for the balance of the shares of Common Stock
purchasable hereunder.
(b) Issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the Holder hereof for
any issue or transfer tax or other incidental expense, in respect of the
issuance of such certificates, all of which such taxes and expenses shall be
paid by the Company.
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2.4. Exercise Disputes. In the case of any dispute with respect to
the number of shares to be issued upon exercise of this Warrant, the Company
shall promptly issue such number of shares of Common Stock that is not disputed
and shall submit the disputed determinations or arithmetic calculations to the
Holder via facsimile within two (2) Business Days of receipt of the Holder's
Election to Purchase Shares and Transfer Agent Instructions. If the Holder and
the Company are unable to agree as to the determination of the Purchase Price
within two (2) Business Days of such disputed determination or arithmetic
calculation being submitted to the Holder, then the Company shall in accordance
with this Section, submit via facsimile the disputed determination to an
independent reputable accounting firm of national standing, selected jointly by
the Company and the Holder. The Company shall cause such accounting firm to
perform the determinations or calculations and notify the Company and the Holder
of the results within forty-eight (48) hours from the time it receives the
disputed determinations of calculations. Such accounting firm's determination
shall be binding upon all parties absent manifest error. The Company shall then
on the next Business Day issue certificate(s) representing the appropriate
number of shares of Common Stock in accordance with such accounting firm's
determination and this Section. All fees and expenses of such determination and
calculation shall be borne by the Company.
3. Adjustment of Common Stock Issuable Upon Exercise.
3.1 Distributions. If the Company at any time after the date of
issuance of this Warrant (i) pays a dividend or makes a distribution of the
Common Stock in additional shares of Common Stock, (ii) subdivides (by any stock
split, stock dividend, recapitalization or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares, (iii)
combines (by combination, reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares, (iv)
makes a distribution on the outstanding shares of Common Stock in any other
equity interest in the Company, or (v) issues by reclassification of the Common
Stock any other shares of Common Stock; then the number of Common Stock issuable
upon the exercise of the Warrant shall be proportionately adjusted so that the
Holder may receive on any subsequent exercise of the Warrant the aggregate
number and kind of equity interests in the Company which it would have owned
immediately following such action if such Warrant had been exercised immediately
prior to such action. Any adjustment under this Section 3.1 shall become
effective at the close of business on the date the subdivision or combination or
reclassification becomes effective and on the record date in the case of a
dividend or distribution.
3.2. Consolidation, Merger, etc. In case the Company after the date
hereof (a) shall consolidate with or merge into any other Person and shall not
be the continuing or surviving corporation of such consolidation or merger, or
(b) shall permit any other Person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving Person but, in connection
with such consolidation or merger, the Common Stock or Other Securities shall be
changed into or exchanged for stock or other securities of any other Person or
cash or any other property, or (c) shall transfer all or substantially all of
its properties or assets to any other Person, or (d) shall effect a capital
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reorganization or reclassification of the Common Stock or Other Securities,
then, and in the case of each such transaction, proper provision shall be made
so that, upon the basis and the terms and in the manner provided in this
Warrant, the Holder of this Warrant, upon the exercise hereof at any time after
the consummation of such transaction shall be entitled to receive (at the
aggregate Purchase Price in effect at the time of such consummation for all
Common Stock or Other Securities issuable upon such exercise immediately prior
to such consummation), in lieu of the Common Stock or Other Securities issuable
upon such exercise prior to such consummation, the amount of securities, cash or
other property to which such Holder would actually have been entitled as a
stockholder upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, subject to adjustments (subsequent to such
consummation) as nearly equivalent as possible to the adjustments provided for
in Sections 3 and 4.
3.3 Issuances for no Consideration. If the Company distributes (and
receives no consideration therefor) any rights, options or warrants (whether or
not immediately exercisable) to holders of any of its outstanding capital stock
entitling them to purchase Common Stock at a price per share less than Fair
Market Price on the record date relating to such distribution, other than
pursuant to Section 3.1, the number of shares of Common Stock issuable upon the
exercise of each Warrant shall be adjusted in accordance with the formula:
O + N
W' = W x ------
N x P
O + ------
C
where:
W' = the adjusted number of shares of Common Stock issuable upon the
exercise of each Warrant.
W = the number of shares of Common Stock issuable upon the exercise of
each Warrant immediately prior to the record date for any such
distribution.
O = the number of shares of Common Stock outstanding on the record date
for any such distribution.
N = the number of additional shares of Common Stock issuable upon
exercise of such rights, options or warrants.
P = the exercise price per share of such rights, options or warrants.
C = Fair Market Price in effect on the record date for any such
distribution.
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The adjustment shall be made successively whenever any such rights, options or
warrants are issued and shall become effective immediately upon the issuance of
such rights, options or warrants.
3.4 Common Stock Issuances. If the Company issues Additional Shares
of Common Stock for a per share less than Fair Market Price on the date the
Company fixes the offering price of such Common Stock, the number of shares of
Common Stock issuable upon the exercise of each Warrant shall be adjusted in
accordance with the formula:
A
W' = W x ---
P
O + ---
C
where:
W' = the adjusted number of shares of Common Stock issuable upon the
exercise of each Warrant.
W = the number of shares of Common Stock issuable upon the exercise of
each Warrant immediately prior to any such issuance.
O = the number of shares of Common Stock outstanding immediately prior
to the issuance of such Additional Shares.
P = the aggregate consideration received for the issuance of such
Additional Shares.
C = Fair Market Price in effect on the date of issuance of such
Additional Shares.
A = the number of shares of Common Stock outstanding immediately after
the issuance of such Additional Shares.
Provided that for the purpose of this Section 3.4, all shares of Common Stock
issuable upon exercise or conversion of outstanding Convertible Securities shall
be deemed to be outstanding. The adjustment shall be made successively whenever
any such issuance is made, and shall become effective immediately after such
issuance.
8
3.5 Convertible Stock Issuances. If the Company issues any
Convertible Securities (other than securities issued in transactions described
in Section 3.1 or Section 3.3) for a consideration per share (as calculated in
accordance with Section 3.6 below) less than Fair Market Price in effect on the
date of issuance of such securities, the number of shares of Common Stock
issuable upon the exercise of each Warrant shall be adjusted in accordance with
the formula:
O + D
W' = W x ------
P
O + ---
C
where:
W' = the adjusted number of shares of Common Stock issuable upon the
exercise of each Warrant.
W = the number of shares of Common Stock issuable upon the exercise of
each Warrant immediately prior to any such issuance.
O = the number of shares of Common Stock outstanding immediately prior
to the issuance of such Convertible Securities.
D = the maximum number of shares of Common Stock deliverable upon
conversion, exchange or exercise of such Convertible Securities at the
initial conversion, exchange or exercise rate.
P = the sum of the aggregate consideration received for the issuance of
such Convertible Securities and the aggregate minimum consideration
receivable by the Company for issuance of shares of Common Stock upon
conversion, exchange or exercise of such Convertible Securities.
C = Fair Market Price in effect on the date of issuance of such
Convertible Securities.
Provided that for the purpose of this Section 3.5, all shares of Common Stock
issuable upon exercise or conversion of outstanding Convertible Securities shall
be deemed to be outstanding. The adjustment shall be made successively whenever
any such issuance is made, and shall become effective immediately after such
issuance. If the aggregate minimum consideration receivable by the Company for
issuance of shares of Common Stock upon conversion, exchange or exercise of such
Convertible Securities shall be increased by virtue of provisions therein
contained or upon the arrival of a specified date or the happening of a
specified event, then the number of shares of Common Stock issuable upon the
exercise of each Warrant shall promptly be readjusted to the number of shares of
Common Stock issuable upon the exercise of each Warrant which would then be in
effect had the adjustment upon the issuance of such securities been made on the
basis of such increased minimum consideration. No further adjustment shall be
made upon the subsequent issue or sale of Convertible Securities or shares of
Common Stock upon the exercise, conversion or exchange of such Convertible
Securities.
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3.6 For purposes of any computation respecting consideration received
pursuant to Section 3.4 and Section 3.5, the following shall apply:
(i) in the case of the issuance of Common Stock for cash, the
consideration shall be the amount of such cash, without any deduction
being made for any commissions, discounts or other expenses incurred
by the Company for any underwriting of the issue or otherwise in
connection therewith;
(ii) in the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the board of directors of the Company; and
(iii) in the case of the issuance of Convertible Securities, the
aggregate consideration received therefor shall be deemed to be the
consideration received by the Company for the issuance of such
Convertible Securities plus the additional minimum consideration, if
any, to be received by the Company upon the conversion, exchange or
exercise thereof (the consideration in each case to be determined in
the same manner as provided in clauses (i) and (ii) of this Section
3.6).
3.7 In the event that at any time, as a result of an adjustment made
pursuant to this Section 3, the Holder shall become entitled to purchase Other
Securities other than, or in addition to, shares of Common Stock, thereafter the
number or amount of such other securities so purchasable upon exercise of each
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
shares of Common Stock contained in Sections 3.1 through 3.5 and the provisions
of the Warrants with respect to the shares of Common Stock shall apply on like
terms to any such other securities.
3.8 Upon each adjustment of the number of shares of Common Stock
issuable upon the exercise of each Warrant pursuant to the provisions of Section
3, the Purchase Price per share shall be adjusted to the nearest penny by
multiplying a number equal to the Purchase Price in effect immediately prior to
such adjustment by the number of shares of Common Stock issuable upon the
exercise of each Warrant immediately prior to such adjustment and dividing the
product so obtained by adjusted number of shares of Common Stock issuable upon
the exercise of each Warrant.
3.9. In the event that the Company shall distribute Rights, the
Company shall give notice to the Holder ten (10) days prior to the date that the
Warrants would need to be exercised to receive such Rights.
4. No Dilution or Impairment. The Company shall not, by amendment of
its certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
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of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the Holder of
this Warrant against impairment. Without limiting the generality of the
foregoing, the Company (a) shall not permit the par value of any shares of stock
receivable upon the exercise of this Warrant to exceed the amount payable
therefor upon such exercise, (b) shall take all such action as may be necessary
or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable shares of stock, free from all taxes, liens, security
interests, encumbrances, preemptive rights and charges on the exercise of the
Warrants from time to time outstanding, (c) shall not take any action which
results in any adjustment of the Purchase Price if the total number of shares of
Common Stock (or Other Securities) issuable after the action upon the exercise
of all of the Warrants would exceed the total number of shares of Common Stock
(or Other Securities) then authorized by the Company's certificate of
incorporation and available for the purpose of issue upon such exercise.
5. Notices of Corporate Action. In the event of:
(a) any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company, any consolidation or merger involving the Company and any
other Person, any transaction or series of transactions in which more
than 50% of the voting securities of the Company are transferred to
another Person, or any transfer, sale or other disposition of all or
substantially all the assets of the Company to any other Person, or
(b) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company shall mail to each holder of a Warrant a notice specifying the date
or expected date on which any such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, sale, disposition,
dissolution, liquidation or winding-up is to take place and the time, if any
such time is to be fixed, as of which the holders of record of Common Stock (or
Other Securities) shall be entitled to exchange their shares of Common Stock (or
Other Securities) for the securities or other property deliverable upon such
reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up. Such notice shall be mailed at
least 20 days prior to the date therein specified but in no event earlier than
the public announcement of such proposed transaction or event.
6. Reservation of Stock, etc. The Company shall at all times reserve
and keep available, solely for issuance and delivery upon exercise of the
Warrants, the number of shares of Common Stock from time to time issuable upon
exercise of all Warrants at the time outstanding and otherwise in accordance
with the terms of the Asset Purchase Agreement and the Management Agreement. All
shares of Common Stock (or Other Securities) issuable upon exercise of any
Warrants shall be duly authorized and, when issued upon such exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable with no
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liability on the part of the holders thereof, and, in the case of all
securities, shall be free from all taxes, liens, security interests,
encumbrances, preemptive rights and charges. The transfer agent for the Common
Stock, which may be the Company (the "Transfer Agent"), and every subsequent
Transfer Agent for any shares of the Company's capital stock issuable upon the
exercise of any of the purchase rights represented by this Warrant, are hereby
irrevocably authorized and directed at all times until the Expiration Date to
reserve such number of authorized and unissued shares as shall be requisite for
such purpose. The Company shall keep copies of this Warrant on file with the
Transfer Agent for the Common Stock and with every subsequent Transfer Agent for
any shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by this Warrant. The Company shall supply such
Transfer Agent with duly executed stock certificates for such purpose. All
Warrant Certificates surrendered upon the exercise of the rights thereby
evidenced shall be canceled, and such canceled Warrants shall constitute
sufficient evidence of the number of shares of stock which have been issued upon
the exercise of such Warrants. Subsequent to the Expiration Date, no shares of
stock need be reserved in respect of any unexercised Warrant.
7. Registration and Transfer of WarrantS, etc.
7.1. Warrant Register; Ownership of Warrants. Each Warrant issued by
the Company shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as it is issued and transferred, which Warrant Register
shall be maintained by the Company at its principal office or, at the Company's
election and expense, by a Warrant Agent or the Company's transfer agent. The
Company shall be entitled to treat the registered Holder of any Warrant on the
Warrant Register as the owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other Person, and shall not be affected by any notice to the
contrary, except that, if and when any Warrant is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as the
owner of such Warrant for all purposes. A Warrant, if properly assigned, may be
exercised by a new holder without a new Warrant first having been issued.
7.2. Transfer of Warrants. This Warrant and all rights hereunder are
transferable in whole or in part, without charge to the Holder hereof, upon
surrender of this Warrant with a properly executed Form of Assignment attached
hereto as Exhibit B at the principal office of the Company (or such other office
or agency of the Company as it may in writing designate to the Holder). Upon any
partial transfer, the Company shall at its expense issue and deliver to the
Holder a new Warrant of like tenor, in the name of the Holder, which shall be
exercisable for such number of shares of Common Stock with respect to which
rights under this Warrant were not so transferred and to the transferee a new
Warrant of like tenor, in the name of the transferee, which shall be exercisable
for such number of shares of Common Stock with respect to which rights under
this Warrant were so transferred.
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7.3. Replacement of Warrants. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender of such Warrant to the Company at its principal office
and cancellation thereof, the Company at its expense shall execute and deliver,
in lieu thereof, a new Warrant of like tenor.
7.4. Adjustments To Purchase Price and Number of Shares.
Notwithstanding any adjustment in the Purchase Price or in the number or kind of
shares of Common Stock purchasable upon exercise of this Warrant pursuant to
Section 3 or Section 4 hereof, any Warrant theretofore or thereafter issued may
continue to express the same number and kind of shares of Common Stock as are
stated in this Warrant, as initially issued.
7.5. Fractional Shares. Notwithstanding any adjustment pursuant to
Section 3 in the number of shares of Common Stock covered by this Warrant or any
other provision of this Warrant, the Company shall not be required to issue
fractions of shares upon exercise of this Warrant or to distribute certificates
which evidence fractional shares. In lieu of fractional shares, the Company
shall make payment to the Holder, at the time of exercise of this Warrant as
herein provided, in an amount in cash equal to such fraction multiplied by the
Current Market Price of a share of Common Stock on the date of Warrant exercise.
8. No Rights or Liabilities as Shareholder. Nothing contained in this
Warrant shall be construed as conferring upon the Holder hereof any rights as a
stockholder of the Company or as imposing any obligation on the Holder to
purchase any securities or as imposing any liabilities on the Holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
9. Notices. Any notices, consents, waivers or other communications
required or permitted to be given hereunder must be in writing and will be
deemed to have been delivered (i) upon receipt, when delivered personally; (ii)
upon receipt, when sent by facsimile, (iii) with written confirmation of
transmission or (iv) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the Company:
METROCALL HOLDINGS, INC.
6677 Richmond Highway
4th Floor
Alexandria, Virginia 22306
Facsimile: (703) 768-9625
Attention: President
If to a Holder, to its address and facsimile number on the register
maintained by the Company. Each party shall provide prior written notice to the
other party of any change in address or facsimile number. Notwithstanding the
foregoing, the exercise of any Warrant shall be effective in the manner provided
in Section 2.
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10. Amendments. This Warrant and any term hereof may not be amended,
modified, supplemented or terminated, and waivers or consents to departures from
the provisions hereof may not be given, except by written instrument duly
executed by the party against which enforcement of such amendment, modification,
supplement, termination or consent to departure is sought.
11. Descriptive Headings, Etc. The headings in this Warrant are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Warrant otherwise
requires: (1) words of any gender shall be deemed to include each other gender;
(2) words using the singular or plural number shall also include the plural or
singular number, respectively; (3) the words "hereof", "herein" and "hereunder"
and words of similar import when used in this Warrant shall refer to this
Warrant as a whole and not to any particular provision of this Warrant, and
Section and paragraph references are to the Sections and paragraphs of this
Warrant unless otherwise specified; (4) the word "including" and words of
similar import when used in this Warrant shall mean "including, without
limitation," unless otherwise specified; (5) "or" is not exclusive; and (6)
provisions apply to successive events and transactions.
12. GOVERNING LAW. This Warrant shall be governed by, and construed
in accordance with, the laws of the State of New York.
13. Submission to Jurisdiction; Consent to Service of Process. The
parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of
any federal or state court located within the State of New York over any dispute
arising out of or relating to this Warrant and each party hereby irrevocably
agrees that all claims in respect of such dispute or any suit, action proceeding
related thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute. Each of the parties hereto agrees that a judgment
in any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each of the parties hereto
hereby consents to process being served by any party to this Agreement in any
suit, action or proceeding by delivery of a copy thereof in accordance with the
provisions of Section 14.
14. Registration Rights Agreement. The shares of Common Stock
issuable upon exercise of this Warrant shall constitute Registrable Securities
(as such term is defined in the Registration Rights Agreement). Each holder of
this Warrant shall be entitled to all of the benefits afforded to a holder of
any such Registrable Securities under the Registration Rights Agreement, by its
acceptance of this Warrant, agrees to be bound by and to comply with the terms
and conditions of the Registration Rights Agreement applicable to such holder as
a holder of such Registrable Securities.
METROCALL HOLDINGS, INC.
By: /s/ Vincent D. Kelly
-----------------------------------
Name: Vincent D. Kelly
Title: President and CEO
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Dates Referenced Herein and Documents Incorporated by Reference
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