1
Exhibit 10.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made and
entered into effective the 31st day of December, 1996, by and between METROCALL,
INC., a Delaware corporation, ("Metrocall"), METROCALL OF SHREVEPORT, INC., a
Louisiana corporation, ("Metrocall Shreveport"), RADIO AND COMMUNICATION
CONSULTANTS, INC., a Louisiana corporation ("RCC"), ADVANCED CELLULAR TELEPHONE,
INC., a Louisiana corporation ("ACT"), LEROY FAITH, SR., XXXXX XXX FAITH, XXXXXX
XXXXXXX FAITH, and LEROY FAITH, JR., (collectively "Shareholders"), and XXXXXX
X. XXXXXX ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, Metrocall is the successor in interest by merger
with A + Network, Inc. to all right, title and obligation of A + Network, Inc.
in and to that certain Agreement and Plan of Merger dated April 26, 1996 by and
between A+ Network, Inc. RCC, ACT, and the Shareholders ("Merger Agreement");
and
WHEREAS, the Merger Agreement provides that closing is to
occur on or before December 31, 1996; and
WHEREAS, a condition of closing the Merger Agreement is
finality of FCC approval of all transactions described in the Merger Agreement;
and
WHEREAS, the parties acknowledge that the FCC has approved
the transactions described in the Merger Agreement and granted necessary
licenses on December 27, 1996, but that said approval and grant shall not become
final until forty (40) days after said date; and
WHEREAS, the parties have previously executed all closing
documents with an effective date of December 31, 1996; and
WHEREAS, the parties desire to amend the Merger Agreement
for the purpose of extending the Finality Date (as defined hereinbelow) as
needed to allow FCC license grants and approval to become final before the
closing documents and consideration are delivered;
NOW, THEREFORE, in consideration of the foregoing, and in
consideration of their mutual covenants, terms, and conditions hereinafter
expressed, the parties hereto agree as follows:
1. The closing of the Merger Agreement and the
consummation of the transactions described therein shall be effective on
December 31, 1996, subject to the condition precedent that the FCC approvals,
licenses, and grants related to the consummation of the transactions described
in the Merger Agreement become final.
2. The parties agree to extend the December 31,
1996, closing deadline set forth in the Merger Agreement to the date the FCC
license grants and approvals become final ("Finality Date"). The parties
anticipate that the Finality Date will be February 5, 1997, unless the FCC or
third parties institute actions to delay such date. In consideration of this
extension, the parties agree to waive their respective rights to terminate the
Merger Agreement based on a failure to close the Merger Agreement by any stated
deadline for closing.
3. On the Finality Date, Metrocall shall transfer
by wire to legal counsel for RCC, ACT, and the Shareholders, the sum of
$804,913.50, representing $40,000.00 to the Shareholders as payment in full for
the covenants of non-competition referenced in the Merger Agreement, the sum of
$35,396.56, represented accrued but unpaid interest on outstanding indebtedness
due to Leroy Faith, Sr., and $729,516.94, representing
2
the principal balance of outstanding indebtedness due to Leroy Faith, Sr.
Further on the Finality Date, Metrocall shall instruct its stock transfer agent
to issue and deliver the Stock Consideration in accordance with the terms of the
Merger Agreement. For this purpose, the parties agree that the value of the
Stock Consideration shall be the average of the reported daily closing sales
prices for a single share of Metrocall common stock on the NASDAQ for the ten
(10) consecutive trading days immediately preceding December 31, 1996.
4. In every other respect, the Merger Agreement and
related closing documents are ratified and confirmed.
5. Capitalized terms not defined herein shall have
the meaning ascribed to them in the Merger Agreement.
6. It is specifically acknowledged that all parties
reserve all rights, causes of actions, and claims that they may have in
connection with the enforcement of the terms and conditions of the Merger
Agreement.
7. Herein appears ESCROW AGENT for the purpose of
acknowledging the terms and conditions of this Agreement and further
acknowledging that he will continue to retain all closing documents in
connection with the Merger Agreement that have been placed in his possession
under the terms and conditions of the previously executed closing documents
dated December 31, 1996. Said documents shall be released from escrow on the
Finality Date.
3
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective the first day written above.
METROCALL, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------
Witness
Print Name: Xxxxxx X. Xxxxxx Its: CFO
------------------------
METROCALL OF SHREVEPORT, INC.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------
Witness
Print Name: Xxxxxx X. Xxxxxx Its: Vice President
RADIO AND COMMUNICATION
CONSULTANTS, INC.
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Leroy Faith
--------------------------- --------------------------
Witness
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx. Its: President
ADVANCED CELLULAR TELEPHONE,
INC.
/s/ Xxxxxxx X. Xxxxxxxxx By:/s/ Leroy Faith, Jr.
--------------------------- --------------------------
Witness
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx. Its: President
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Leroy Faith, Sr.
--------------------------- -----------------------------
Witness LEROY FAITH, SR.
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Leroy Faith, Jr.
--------------------------- -----------------------------
Witness LEROY FAITH, JR.
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxx Xxx Faith
--------------------------- -----------------------------
Witness XXXXX XXX FAITH
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxxx Faith
--------------------------- -----------------------------
Witness XXXXXX XXXXXXX FAITH
Print Name: Xxxxxxx X. Xxxxxxxxx, Xx.
ESCROW AGENT
/s/ Xxxx Xxxxxx By:/s/ Xxxxxx X. Xxxxxx
--------------------------- --------------------------
Witness XXXXXX X. XXXXXX
Print Name: Xxxx Xxxxxx
