VOTING AGREEMENT
AND IRREVOCABLE PROXY
AGREEMENT, dated as of February 11, 1997 by and between
R.S. OPERATORS, INC., a Wireless Cable of Atlanta, Inc.
stockholder ("Stockholder") and BELLSOUTH CORPORATION, a Georgia
corporation ("BellSouth").
WHEREAS, BellSouth, WIRELESS CABLE OF ATLANTA, INC., a
Georgia corporation ("WCA"), and BELLSOUTH WCA MERGER SUBSIDIARY,
INC., a newly- formed Georgia corporation ("BellSouth Sub"),
propose to enter into an Agreement and Plan of Reorganization of
even date herewith (the "Merger Agreement") (capitalized terms
used herein but not defined herein shall have the meanings
assigned in the Merger Agreement), which provides, among other
things, upon the terms and subject to the conditions thereof, for
a merger of BellSouth Sub with and into WCA (the "Merger") in
which, among other things, that at the Effective Time as defined
in the Merger Agreement (the "Effective Time"), each share of
WCA's common stock, $1.00 par value (the "WCA Common Stock"),
issued and outstanding immediately prior to the Effective Time
(other than any shares of WCA Common Stock to be canceled
pursuant to Section 2.05(c) of the Merger Agreement and
Dissenting Shares) shall be converted into shares of the common
stock, $1.00 par value per share, of BellSouth (the "BellSouth
Common Stock") determined in accordance with the Exchange Ratio
as set forth in Section 2.05(a) of the Merger Agreement; and
prior to the Effective Time, each share of its 12% Cumulative
Convertible Redeemable Preferred Stock, Series A, $1.00 par value
(the "WCA Preferred Stock") shall be converted to WCA Common
Stock and all accrued but unpaid dividends on the WCA Preferred
Stock shall have been paid; and
WHEREAS, Exhibit A attached hereto sets forth as of the date
of this Agreement the number and type of issued and outstanding
securities of WCA owned by Stockholder (all of such securities
being hereinafter referred to as the "WCA Securities"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, BellSouth has requested that Stockholder agree
and Stockholder has agreed, to vote its shares of WCA Securities
in favor of the Merger and to grant an irrevocable proxy as to
certain matters as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties
hereto agree as follows:
1. Revocation of Proxies; Agreement to Vote; Grant of
Proxy. Stockholder hereby revokes any and all previous proxies
with respect to the Stockholder's WCA Securities. Stockholder
agrees to attend, in person or by proxy, any meeting of the
stockholders of WCA called pursuant to the Merger Agreement to
vote upon approval and adoption of the Merger Agreement, and to
vote upon approval and adoption of the Merger Agreement, and to
vote such Stockholder's WCA Securities and any voting securities
of WCA hereafter issued in exchange therefor or in respect
thereof for approval and adoption of the Merger Agreement and in
favor of any other matters that are intended to facilitate and
implement the Merger submitted for the vote of the stockholders
of WCA at such meeting, or at any adjournment or adjournments
thereof, pursuant to the Merger Agreement. Notwithstanding the
foregoing, effective upon the execution and delivery of this
Agreement, Stockholder appoints Xxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxx, and each of them, with full power of substitution in
each, as proxies, solely (a) to vote such Stockholder's WCA
Securities at any meeting of stockholders of WCA or any
adjournment or adjournments thereof, or (b) to give a consent
with respect to such Stockholder's WCA Securities, in each case
in favor of approval and adoption of the Merger Agreement and any
other matters that are intended to facilitate and implement the
Merger (other than the election of directors of WCA) and against
the approval of any proposals (other than elections of directors
of WCA) relating to an acquisition of control of WCA or all or
any substantial part of its business, assets or capital stock in
a transaction outside the ordinary course of business by any
person or entity other than BellSouth or BellSouth Sub or an
affiliate of BellSouth or BellSouth Sub. Notwithstanding anything
to the contrary contained herein, this proxy shall not extend to
matters other than those specifically enumerated in subsections
(a) and (b) above and shall not be deemed a limitation on the
ability of Stockholder, in its capacity as a member of the Board
of Directors of WCA, to direct and manage the business and
affairs of WCA in accordance with the Georgia Business
Corporation Code of the State of Georgia. This proxy shall not
be construed to permit BellSouth or BellSouth Sub to directly or
indirectly control, supervise or direct any activities associated
with the Wireless Cable System prior to the Effective Time of the
Merger. THIS PROXY SHALL BE DEEMED IRREVOCABLE AND COUPLED WITH
AN INTEREST. This proxy shall be effective until the
consummation of the transactions contemplated by the Merger
Agreement or until the Merger Agreement is terminated in
accordance with its terms.
2. Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to BellSouth as
follows:
a. Stockholder has all necessary power and authority
to enter into this Agreement. None of the Stockholder's WCA
Securities owned by Stockholder are subject to any proxy, voting
trust or other agreement or arrangement with respect to the
voting of Stockholder's WCA Securities.
b. This Agreement is the legal, valid and binding
agreement of Stockholder, enforceable against Stockholder in
accordance with its terms.
c. The execution of this Agreement by Stockholder
does not, and the performance by Stockholder of the obligations
of Stockholder hereunder will not, constitute a material
violation of, conflict with or result in a default under any
contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Stockholder is a party or by
which Stockholder is bound or any judgment, decree or order to
which Stockholder is subject.
d. Neither the execution and delivery of this
Agreement, nor the performance by Stockholder of Stockholder's
obligations hereunder will (i) assuming satisfaction of the
requirements set forth in clause (ii) below, violate any
provision of law known by Stockholder to be applicable to
Stockholder; or (ii) except for the requirements, if any, of
federal and state securities laws, require any consent or
approval of, or filing with or notice to, any public body or
authority under any provision of law known by Stockholder to be
applicable to Stockholder.
3. Covenant of Stockholder. So long as the Merger
Agreement remains in effect, Stockholder hereby covenants and
agrees with BellSouth that, except pursuant to the terms of this
Agreement, Stockholder will not, without the prior written
consent of BellSouth, directly or indirectly, grant any proxies
or enter into any voting trust or other agreement or arrangement
with respect to the voting of any WCA Securities.
4. Remedies. The parties hereto agree that if for any
reason Stockholder shall have failed to perform its obligations
under this Agreement, then BellSouth shall be entitled to
specific performance and injunctive and other equitable relief,
and the parties hereto further agree to waive any requirement for
the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. This
provision is without prejudice to any other rights that BellSouth
may have against Stockholder for any failure to perform its
obligations under this Agreement.
5. Miscellaneous.
a. Assignment. This Agreement shall not be
assignable by the parties hereto. This Agreement shall be
binding upon Stockholder and Stockholder's heirs, successors and
assigns by will or by the laws of descent.
b. Amendments. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto.
c. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally or by guaranteed overnight delivery service
or mailed by registered or certified mail (return receipt
requested) or transmitted by facsimile to the parties as follows
(or at such other address for a party as shall be specified by
like notice):
(i) If to BellSouth:
BellSouth Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone:(000) 000-0000
Telecopier:(000) 000-0000
with a copy to:
Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone:(000) 000-0000
Telecopier:(000) 000-0000
(ii) If to the Stockholder, at the address set
forth on the signature page hereof.
d. Governing Law. This Agreement shall be governed
in all respects, including validity, interpretation and effects,
by the laws of the State of Georgia, without regard to the
principles of conflicts of laws thereof.
e. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original, but all
of which together shall constitute one of the same agreement.
f. Effect of Headings. The headings contained herein
are for convenience of reference only and shall not affect the
meaning or interpretation hereof.
g. Definitions. Capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms
in the Merger Agreement.
IN WITNESS WHEREOF, BellSouth and Stockholder have caused
this Agreement to be signed as of the date first above written.
BELLSOUTH CORPORATION
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
STOCKHOLDER
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Address: R.S. Operators, Inc.
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Exhibit A
Type and Number of
Name of Stockholder WCA Securities
R.S. Operators, Inc. 278,750 shares WCA
Common Stock
