EX-10
EXHIBIT 10(a)(11)
AMENDMENT NO. 1 TO VOTING AGREEMENT
THIS AMENDMENT NO. 1 TO VOTING AGREEMENT (the "Amendment") made and entered
into as of September 30, 1998 by and among Inter*Act Systems, Incorporated, a
North Carolina corporation (the "Company"), Vanguard Cellular Operating Corp., a
North Carolina corporation and wholly owned subsidiary of Vanguard Cellular
Systems, Inc. ("Vanguard"), and those individuals or entities whose names appear
on the signature pages hereto (individually, a "Shareholder" and collectively,
the "Shareholders");
W I T N E S S E T H:
WHEREAS, the Company, Vanguard and the Shareholders are parties to a Voting
Agreement dated as of November 1, 1996 (the "Voting Agreement") pursuant to
which the Shareholders agreed to vote all of their shares of common stock of the
Company, and to use their best efforts otherwise, so as to elect and maintain
out of the twelve director positions on the Board of Directors of the Company
six persons nominated by Vanguard; and
WHEREAS, the Voting Agreement was entered into based upon the relationship
between the Company and Vanguard as known to the Shareholders at such time, and
the parties hereto desire to amend the Voting Agreement to provide that it shall
terminate in the event there is a change in control of Vanguard;
NOW, THEREFORE, in consideration of the foregoing and the premises and the
mutual covenants contained herein, the parties hereto, intending legally to be
bound, hereby agree as follows:
1. Amendment to Voting Agreement. The Voting Agreement is hereby modified
and amended by amending Section 4 of the Voting Agreement in its entirety to
read as follows:
4. Amendment and Termination. This Agreement may be amended only by an
instrument in writing executed by all the parties hereto. This Agreement
shall be terminated upon the earlier to occur of: (i) written notice of
termination from Vanguard to the Shareholders; (ii) an underwritten public
offering of shares of the Company's Common Stock pursuant to a registration
statement filed under the Securities Act of 1933, as amended; (iii) a
Change in Control of Vanguard (as defined below) or (iv) ten years from the
date hereof.
For purposes of clause (iii) of this Section 4, "Vanguard" shall mean
Vanguard Cellular Systems, Inc., a North Carolina corporation and parent
company of Vanguard Cellular Operating Corp., and "Change in Control" shall
mean the occurrence of any of the following events:
(a) Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") but excluding any employee benefit plan of the
Vanguard) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of Vanguard representing 50% or more of the combined voting power of
Vanguard's outstanding securities then entitled ordinarily (and apart
from rights accruing under special circumstances) to vote for the
election of directors; or
(b) Individuals who are "Continuing Directors" (as hereinafter
defined) cease for any reason to constitute at least a majority of the
Board of Directors of Vanguard; or
(c) The closing of a sale of all or substantially all of the
assets of Vanguard; or
(d) The closing of a merger, consolidation or like business
combination or reorganization of Vanguard the consummation of which
would result in the occurrence of any event described in clause (i) or
(ii) above.
For purposes of the foregoing, "Continuing Directors" shall mean
(i) the directors of Vanguard in office on July 22, 1998 and (ii) any
successor to any such director (and any additional director) who after
such date (y) was nominated or selected by a majority of the
Continuing Directors in office at the time of his nomination or
selection and (z) who is not an "affiliate" or "associate" (as defined
in Regulation 12B under the Exchange Act) of any person who is the
beneficial owner, directly or indirectly, of securities representing
50% or more of the combined voting power of Vanguard's outstanding
securities then entitled ordinarily to vote for the election of
directors.
2. Effect of Amendment. The parties hereto acknowledge and agree that,
except as modified hereby, all of the terms and provisions of the Voting
Agreement shall remain in full force and effect.
3. Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, successors, personal representatives and assigns.
4. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be considered to be and have the force and effect of an
original.
IN WITNESS WHEREOF, each of the parties hereto has executed or caused this
Amendment to be executed by its duly authorized officials, as of the date and
year first above written.
INTER*ACT SYSTEMS, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Chief Executive Officer
VANGUARD CELLULAR OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
President
SHAREHOLDERS:
XXXXXX FAMILY PARTNERS, LTD.
By:/s/ Xxxxxxxx X. Xxxxxxx
------------------------
General Partner
2
/s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
/s/ X. Xxxxxx Xxxxxxxx
------------------------
X. Xxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxx
------------------------
Xxxxx X. Xxxx
CLEARING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx III
------------------------
Vice President-Treasurer
/s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxx
CO-TRUSTEES FOR XXXXXXX X. XXXXXXX
IRREVOCABLE TRUST DATED JULY 17,
1996
By: /s/ Xxxxxxx X.X. Xxxxx
------------------------------
Xxxxxxx X.X. Xxxxx, Co-Trustee
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
/s/ S. Xxxx Xxxx III
-----------------------------
S. Xxxx Xxxx III
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXXX IRREVOCABLE
TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx, Trustee
3
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxx
XXXXXXX AND XXXXXXX XXXXXXXXX
TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
/s/ X. Xxxxxxxxxx Xxxxxx, Jr.
-----------------------------
X. Xxxxxxxxxx Xxxxxx, Jr.
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Van X. Xxxxxxx
-----------------------------
Van X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
TORONTO DOMINION INVESTMENTS,
INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Vice-President
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
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