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EXHIBIT 2
AGREEMENT TO SETTLE AND MERGER PLAN
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THIS AGREEMENT TO SETTLE AND MERGER PLAN, dated September 11, 2000, is by
and among DUKENET COMMUNICATIONS, INC., a North Carolina corporation
("DukeNet"), CARONET, INC., a North Carolina corporation that is also
domesticated in Virginia (formerly known as Interpath Communications, Inc.
"Caronet"), BELLSOUTH PERSONAL COMMUNICATIONS, INC., a Delaware corporation
("BellSouth PCS"), BELLSOUTH CORPORATION, a Georgia corporation ("BellSouth")
and BELLSOUTH CAROLINAS PCS, L.P., a Delaware limited partnership (the
"Partnership").
W I T N E S S E T H:
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WHEREAS:
A. The Partnership was formed pursuant to the Limited Partnership
Agreement dated as of December 8, 1994 (as amended, the "Partnership
Agreement"), for the purpose of providing personal communications services in
North Carolina, South Carolina and Northeast Georgia.
B. BellSouth PCS is the sole general partner of the Partnership. DukeNet
is a limited partner of the Partnership and holds a 20% limited partnership
interest in the Partnership. Caronet is a limited partner of the Partnership
and holds a 10% limited partnership interest in the Partnership. The remaining
Limited Partners of the Partnership are various Rural Telcos and Cooke Inlet
PCS, Inc., a Delaware corporation.
C. BellSouth is, directly or indirectly, the sole parent corporation of
BellSouth PCS.
D. On July 27, 2000, DukeNet, individually and derivatively as a limited
partner on behalf of the Partnership, filed a lawsuit (the "Court Action")
against BellSouth, BellSouth PCS, and the Partnership in the Superior Court of
Mecklenburg County, North Carolina. The Court Action was filed as Civil Action
No. 00-CVS-11053 in the Superior Court. The Court Action has been removed to
the United States District Court for the Western District of North Carolina and
is filed in the District Court as Civil Action No. 3:00 CV 384 MU. In the Court
Action, DukeNet has requested a preliminary injunction that would prohibit
BellSouth from causing or allowing BellSouth PCS or its successors to be
contributed to, participate in, or be a party to the proposed nationwide
cellular joint venture with SBC Communications Inc. ("Newco").
E. On July 27, 2000, DukeNet also filed a Notice of Arbitration against
BellSouth PCS and the Partnership before the Center for Public Resources (the
"Arbitration"). In the Arbitration, DukeNet sought damages and other relief in
connection with creation of Newco.
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F. As a Limited Partner of the Partnership, Caronet may have claims
against BellSouth, BellSouth PCS, and the Partnership that are the same as, or
similar to, those claims asserted by DukeNet in the Court Action and the
Arbitration.
G. To resolve the matters complained of in the Court Action and the
Arbitration, BellSouth, BellSouth PCS, DukeNet, the Partnership and Caronet have
agreed to enter into this Agreement and an Agreement and Plan of Merger in the
form of Annex 1 hereto (the "Merger Plan"), pursuant to which the Partnership
would merge into BellSouth PCS or its designee (the "Merger"). In the Merger,
each of DukeNet, Caronet and the other Limited Partners of the Partnership would
receive cash in an amount equal to the product of $2 billion and the Equity
Interest held by each such Limited Partner.
H. If the Merger cannot be completed as contemplated herein and in the
Merger Plan on or before October 15, 2000, then each of DukeNet, Caronet and the
other Limited Partners of the Partnership will have the right to require
BellSouth PCS to acquire its Equity Interests for cash in an amount equal to the
product of $1.75 billion and the Equity Interest held by each such Limited
Partners.
I. In order to allow sufficient time for completion of the Merger or the
purchase of such Equity Interests, the parties hereto have agreed to stay
proceedings in the Court Action and the Arbitration and seek approval to dismiss
the Court Action, on the terms and subject to the conditions set forth in this
Agreement. Upon the earlier of completion of the Merger or completion of the
purchase of DukeNet's Equity Interest, DukeNet will dismiss the Court Action and
Arbitration and execute a mutual release in the form of Annex 3 hereto (the
"Release")
J. To set forth their understandings with respect to such settlement,
Merger, and related actions, the parties have entered into this Agreement to
Settle and Merger Plan.
AGREEMENTS:
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, for themselves, their successors and
assigns, agree as follows:
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ARTICLE I
DEFINED TERMS
1.1 Definitions.
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(a) Particular Terms. For all purposes of this Agreement, the following
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terms shall have the following meanings (such definitions to be equally
applicable to both the singular and the plural forms of the terms defined):
"Affiliate" of any Person means any other Person that directly or
indirectly controls, or is controlled by, or is under a common control with,
such Person. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this Agreement, Newco shall be deemed to be an
Affiliate of BellSouth and BellSouth PCS.
"Agreement" means this Agreement to Settle and Merger Plan, as amended,
modified, or supplemented from time to time.
"Anniversary Date" means October 15, 2001.
"Applicable Law" means all applicable federal, state, local, municipal,
foreign or other administrative orders, constitutions, laws, ordinances,
principles of common law, regulations, statutes and treaties.
"Arbitration" has the meaning set forth in clause E of the recitals of this
Agreement.
"BellSouth" means BellSouth Corporation, a Georgia corporation, and its
successors and assigns.
"BellSouth Board Approval" means the approval by the Board of Directors of
BellSouth of this Agreement and the Merger.
"BellSouth Defense Undertaking" has the meaning set forth in Section
8.4(a)(ii).
"BellSouth Full Indemnification" has the meaning set forth in Section
2.4(a)(v).
"BellSouth PCS" means BellSouth Personal Communications, Inc., a Delaware
corporation, and its successors and assigns. BellSouth PCS is the General
Partner of the Partnership.
"Business Day" means any day in which banks are open for business in
Atlanta, Georgia.
"Call Notice" has the meaning set forth in Section 3.5.
"Call Right" has the meaning set forth in Section 3.5.
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"Caronet" has the meaning set forth in the introductory paragraph of this
Agreement.
"Caronet Pledge Agreement" has the meaning set forth in Section 5.2.
"Challenging Litigation" means any suit, action, or proceeding, including
any arbitration proceeding, that has been instituted by any Governmental
Authority or any other Person (i) that seeks to restrain or prohibit the
consummation of the Merger or to obtain from BellSouth PCS, BellSouth, DukeNet
or Caronet, any damages that are material in relation to the business,
properties, and assets of BellSouth PCS or the Partnership, or (ii) seeks to
prohibit BellSouth PCS from effectively controlling in any material respect the
business or operations of the Partnership.
"Court Action" has the meaning set forth in clause D of the recitals of
this Agreement.
"CP&L" means CP&L Energy, Inc., a North Carolina corporation.
"CP&L Board Approval" means the approval by the Board of Directors of CP&L
of this Agreement and the Merger.
"Credit Agreement" means the Credit Agreement dated as of April 30, 1998
among the Partnership, Bank of America, N.A. and the other Agents and Lenders
named herein.
"Delaware Limited Partnership Act" means the Delaware Revised Uniform
Limited Liability Partnership Act, DEL. CODE ANN. tit. 6, (S) 17-101 - (S) 17-
1111, as amended.
"Defending Group" means, at the election of DukeNet and Caronet, any of the
following: (i) DukeNet individually, (ii) Caronet individually, or (iii) DukeNet
and Caronet, jointly and severally.
"Defense Undertaking" means an undertaking, substantially in the form of
Annex 4 hereto, pursuant to which the Defending Group will have undertaken the
conduct and agreed to bear the expenses related to the defense of any
Challenging Litigation, which undertaking will be terminable at any time by the
Defending Group by written notice to BellSouth PCS.
"DukeNet" has the meaning set forth in the introductory paragraph of this
Agreement.
"DukeNet Pledge Agreement" has the meaning set forth in Section 4.2.
"Equal Contribution Agreement" means a contribution agreement between the
Defending Group, on the one hand, and BellSouth PCS and BellSouth, on the other
hand, pursuant to which the parties agree to contribute equally (50% for the
Defending Group, on the one hand, and 50% for BellSouth PCS and BellSouth, on
the other hand) to any
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damages and expenses incurred by any of them in respect of a Challenging
Litigation, and containing such terms and conditions as the Defending Group and
BellSouth PCS may agree.
"Equity Interest" has the meaning assigned to such term in the Partnership
Agreement, and as set forth on Annex 2 hereto.
"Exercising Limited Partner" has the meaning set forth in Section 3.1.
"Final Permanent Merger Injunction" means a judgment, injunction, order, or
decree of any court of competent jurisdiction that permanently enjoins or
prohibits BellSouth, BellSouth PCS, or the Partnership from consummating the
Merger, which judgment, injunction, order, or decree has become final and
subject to no further appeals.
"Final Permanent Purchase Injunction" means a judgment, injunction, order,
or decree of any court of competent jurisdiction that permanently enjoins or
prohibits BellSouth PCS and the applicable Exercising Limited Partner from
consummating a Put Right Purchase, which such judgment, injunction, order, or
decree has become final and subject to no further appeals.
"Full Indemnification" means an undertaking, substantially in the form of
Annex 5 hereto, pursuant to which the Defending Group agrees to indemnify
BellSouth PCS and its Affiliates from any and all damages and expenses that may
be incurred by BellSouth PCS and its Affiliates arising out of any Challenging
Litigation, which undertaking is terminable only with the consent of the
Indemnified Partners.
"General Partner" has the meaning assigned to such term in the Partnership
Agreement.
"Governmental Authority" means any governmental, regulatory or
administrative authority, agency or body, federal, state or local.
"Hart-Scott Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976 or any successor law, and regulations and rules issued pursuant to that Act
or any successor law.
"Limited Partner" has the meaning assigned to such term in the Partnership
Agreement.
"Merger" has the meaning set forth in clause G in the recitals of this
Agreement.
"Merger Closing" has the meaning set forth in Section 2.1.
"Merger Closing Date" has the meaning set forth in Section 2.1.
"Merger Consideration" means cash, in immediately available funds, payable
to each Limited Partner, in an amount equal to the product of (i) Two Billion
Dollars ($2,000,000,000) and (ii) the percentage Equity Interest of each such
Limited Partner.
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"Merger Plan" has the meaning set forth in clause G in the recitals of this
Agreement.
"Merger Effective Date" has the meaning set forth in Merger Plan.
"Merger Effective Time" has the meaning set forth in Merger Plan.
"Newco" has the meaning set forth in clause D in the recitals of this
Agreement.
"Newco Contribution Injunction" means any injunction, restraining order, or
similar order, whether preliminary, temporary, or permanent, that prohibits or
prevents BellSouth or BellSouth PCS, or both of them, or any of their
Affiliates, from directly or indirectly contributing BellSouth PCS to Newco.
"Partnership" has the meaning set forth in the introductory paragraph of
this Agreement.
"Partnership Agreement" has the meaning set forth in the clause A in the
recitals of this Agreement, and includes any amendment, modification or
supplement thereof.
"Person" means any individual or entity, including without limitation, any
corporation, partnership, limited partnership, limited liability company,
business trust or association.
"Put Notice" has the meaning set forth in Section 3.1.
"Put Right" has the meaning set forth in Section 3.1.
"Put Right Purchase" means the purchase by BellSouth PCS of the Equity
Interest of an Exercising Limited Partner, following the exercise of such
Limited Partner's Put Right.
"Put Right Purchase Closing" has the meaning set forth in Section 3.2.
"Put Right Purchase Closing Date" has the meaning set forth in Section 3.2.
"Release" has the meaning set forth in clause I in the recitals of this
Agreement.
"Required Lender Consent" means the consent of Bank of America, N.A. under
the terms of the Credit Agreement.
"Right of First Refusal" means the rights of the Partnership and the
Limited Partners set forth in Section 10.4 of the Partnership Agreement.
"Rural Telcos" has the meaning set forth in the Partnership Agreement.
"Subsidiary" of any Person means any other Person that is controlled by
such Person. "Control" for this purpose has the meaning set forth in the
definition of Affiliate.
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"Written Consent" has the meaning set forth in Section 7.2.
(b) Other Definitions. In addition to the foregoing defined terms, and
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except as the context plainly requires otherwise, capitalized terms used herein
but not defined herein shall have the respective meanings assigned to such terms
in the Partnership Agreement.
1.2 References. Any term defined by reference to an agreement, instrument
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or other document shall have the meaning so assigned to it whether or not such
agreement, instrument or other document is in effect. Unless a clear contrary
intention appears: (i) references in this Agreement to articles, sections,
subsections, paragraphs, clauses, appendices, schedules and exhibits are to the
same contained in or attached to this Agreement; (ii) the use of the word
"hereof," "herein," "hereunder," "herewith" and words of similar import shall
refer to this Agreement as a whole and not to any particular subdivision
thereof; (iii) any reference to the date hereof shall be to the date as to which
this Agreement was made, as first above written; (iv) references to any "party"
or to the "parties" mean collectively all of the parties to this Agreement, or
singularly any one of them; (v) references to "including" also means "including,
without limitation" and (vi) reference to any agreement, document or instrument
means such agreement, document or instrument as amended or modified and in
effect from time to time in accordance with the terms thereof.
ARTICLE II
THE MERGER
2.1 Merger; Time and Place of Closing. Upon the terms and subject to the
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conditions set forth in this Agreement and the Merger Plan, the Partnership
will be merged with and into BellSouth PCS or its designee at the Merger
Effective Time. The closing of the Merger (the "Merger Closing") will take place
(a) at 10 o'clock a.m., Atlanta, Georgia, time, at the offices of Kilpatrick
Stockton LLP, Suite 2800, 1100 Peachtree Street, Atlanta, Georgia, as promptly
as practicable (but no later than the second Business Day) following the date on
which the last to be satisfied or waived of the conditions set forth in Section
2.4 (other than those conditions that by their nature cannot be satisfied until
such closing date, but subject to the satisfaction or waiver of those
conditions) shall be satisfied or waived in accordance with this Agreement (it
being understood that September 27, 2000 shall be targeted as the closing date
of the Merger), or (b) at such other place, time, and date as BellSouth PCS,
DukeNet, and Caronet may agree (the date of the Merger Closing being referred to
herein as the "Merger Closing Date").
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2.2 Merger Effective Time. On the Merger Closing Date, the Partnership
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and BellSouth PCS will (a) file with the Secretary of State of the State of
Delaware a certificate of merger (the "Certificate of Merger") in such form as
is required by and executed in accordance with the relevant provisions of the
Delaware Limited Partnership Act and (b) make all other filings and recordings
required under the Delaware Limited Partnership Act. The Merger will become
effective at such time as the Certificate of Merger is duly filed with the
Delaware Secretary of State or at such subsequent time as BellSouth PCS,
DukeNet, and Caronet may agree and specify in the Certificate of Merger (the
date and time the Merger becomes effective being referred to herein as the
"Merger Effective Time").
2.3 Required Vote. The parties hereto acknowledge and agree that, other
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than the approval of the Merger by BellSouth PCS, as General Partner of the
Partnership, and by Limited Partners that hold a majority of the Voting
Interests held by all of the Limited Partners, no vote of the holders of any
partnership interest in the Partnership is required to approve this Agreement,
the Merger, or the Merger Plan.
2.4 Conditions Precedent to Merger.
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(a) Conditions to Obligations of BellSouth PCS, DukeNet, and Caronet. The
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obligations of BellSouth PCS, DukeNet, and Caronet to consummate the Merger will
be subject to the satisfaction or waiver, on or prior to the Merger Closing
Date, of all of the following conditions, each and all of which may be waived by
the appropriate party or parties:
(i) Receipt of Required Vote. The General Partner and Limited
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Partners holding a majority of the Voting Interests held by all of the
Limited Partners will have approved the Merger.
(ii) Approval under Applicable Laws. All consents required under
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Applicable Laws will have been obtained.
(iii) Required Lender Consent. The Required Lender Consent will have
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been obtained.
(iv) Absence of Injunction. No temporary restraining order,
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preliminary or permanent injunction, or similar order or decree issued by a
Governmental Authority or any court of competent jurisdiction will be in
effect, if the effect of such order or injunction is to make the Merger
illegal or otherwise prohibit consummation of the Merger.
(v) Absence of Challenging Litigation. No Challenging Litigation
---------------------------------
will have been instituted and not dismissed or discharged; provided,
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however, that the institution or pendency of Challenging Litigation will
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not be a condition precedent , if (A) the Defending Group, on the one hand,
and BellSouth PCS, on the other hand, enter into the Equal Contribution
Agreement, (B) the Defending Group tenders the Full Indemnification to
BellSouth PCS, or (C) BellSouth PCS agrees to indemnify DukeNet and Caronet
pursuant to the same
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terms as the Full Indemnification (such indemnification being defined as
the "BellSouth Full Indemnification")
(b) Additional Conditions to Obligations of BellSouth PCS. The obligations
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of BellSouth PCS to consummate the Merger will be subject to the satisfaction or
waiver on or prior to the Merger Closing Date of all of the following additional
conditions, each and all of which may be waived by BellSouth PCS:
(i) Representations and Warranties of DukeNet and Caronet. Each of
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the representations and warranties of DukeNet and Caronet set forth in
Article IV and V of this Agreement will be true and correct in all material
respects, in each case when made and as of the Merger Closing Date as
though made on and as of the Merger Closing Date.
(ii) Performance of Obligations of DukeNet and Caronet. Each of
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DukeNet and Caronet will have performed or complied in all material
respects with all agreements and covenants required to be performed by it
under this Agreement at or prior to the Merger Closing Date.
(iii) BellSouth Board Approval. The BellSouth Board Approval will
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have been obtained.
(iv) CP&L Board Approval. The CP&L Board Approval will have been
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obtained.
2.5 Termination of Merger. The obligations of the parties hereto to
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consummate the Merger may be terminated at any time prior to the Merger
Effective Time by:
(a) BellSouth PCS, Caronet and DukeNet by mutual written consent;
(b) either BellSouth PCS, Caronet or DukeNet, if the Merger Effective Time
will not have occurred by the close of business on the Anniversary Date;
provided, however, that the right to terminate the obligation to consummate the
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Merger will not be available to (i) BellSouth PCS, if the failure or refusal of
BellSouth or any Affiliate of BellSouth PCS to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the Merger
Effective Time to occur on or before the Anniversary Date, or (ii) DukeNet or
Caronet, if the failure or refusal of DukeNet, Caronet, or any Affiliate of
DukeNet or Caronet has been the cause of, or resulted in, the failure of the
Merger Effective Time to occur on or before the Anniversary Date;
(c) BellSouth PCS, DukeNet, or Caronet at any time if a Final Permanent
Merger Injunction has been entered;
(d) BellSouth PCS, at any time on or after October 15, 2000, if
Challenging Litigation is pending and the Defending Group has not (i) tendered
the Defense Undertaking, (ii) tendered the Full Indemnification, or (iii)
entered into the Equal Contribution Agreement;
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(e) BellSouth PCS, at any time after termination of the Defense
Undertaking if Challenging Litigation remains pending;
(f) BellSouth PCS or DukeNet, if the BellSouth Board Approval has not been
obtained on or before September 25, 2000; and
(g) BellSouth PCS or Caronet, if the CP&L Board Approval has not been
obtained on or prior to September 25, 2000.
2.6 Procedure and Effect of Termination. In the event any party entitled
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to terminate its obligation to consummate the Merger pursuant to Section 2.5
elects to terminate the Merger, the terminating party will give written notice
of such termination to all other parties to this Agreement, and the obligations
of all parties hereto to consummate the Merger will terminate and become void
and have no effect, and the Merger will be abandoned without further action by
the parties hereto. Notwithstanding the foregoing, termination of the Merger
will not relieve any party from its obligations and liabilities under this
Agreement with respect to the Put Rights nor relieve any party of any liability
for any breach of this Agreement.
ARTICLE III
PUT RIGHTS
3.1 Grant of Put Right. If the Merger has not been effected on or before
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October 15, 2000 due to the failure of any of the conditions set forth in
Section 2.4(a), then each Limited Partner that has voted in favor of the Merger,
including DukeNet and Caronet, shall have the right to require BellSouth PCS to
purchase, acquire, and accept from such Limited Partner all but not less than
all of its Equity Interest and Voting Interest (the "Put Right"), for cash in an
amount equal to the product of $1.75 billion and the percentage Equity Interest
held by such Limited Partner (the "Put Right Purchase Price"); provided,
however, that no Limited Partner may exercise the Put Right granted herein if
the failure or refusal of such Limited Partner has been the cause of, or
resulted in, the failure of the Merger to be effected on or before October 15,
2000. The Put Right shall be exercisable by a Limited Partner until the earliest
of: (i) consummation of the Merger; (ii) DukeNet lifting the Stay Order pursuant
to Section 8.5 hereof, (iii) the Anniversary Date or (iv) notice by such Limited
Partner to BellSouth PCS that it does not intend to exercise its Put Right,
which notice, if given, shall be deemed irrevocable. A Limited Partner may
exercise the Put Right by delivering to BellSouth PCS written notice (a "Put
Notice") that such Limited Partner (an "Exercising Limited Partner") intends to
exercise its Put Right. Following receipt of a Put Notice, BellSouth PCS will
purchase, acquire, and accept from such Exercising Limited Partner all but not
less than all of its Equity Interest and Voting Interest on the terms and
subject to the conditions set forth in this Article III. Notwithstanding the
foregoing, no Limited Partner shall be granted a Put Right if BellSouth Board
Approval has not been obtained on or before September 25, 2000.
3.2 Time and Place of Closing. The closing of the Put Right Purchase (the
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"Put Right Purchase Closing") will take place at the offices of Kilpatrick
Stockton LLP, Suite
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2800, 1100 Peachtree Street, Atlanta, Georgia, as promptly as practicable (but
no later than the second Business Day) following the date on which the last to
be satisfied or waived of the conditions set forth in Section 3.3 (other than
those conditions that by their nature cannot be satisfied until the Put Right
Purchase Closing Date, but subject to the satisfaction or waiver of those
conditions) shall be satisfied or waived in accordance with this Agreement, or
(b) at such other place, time, and date as BellSouth PCS and the Exercising
Limited Partner may agree (the date of the Put Right Purchase Closing being
referred to herein as the "Put Right Purchase Closing Date") at the offices of
Kilpatrick Stockton LLP
3.3 Conditions Precedent to Put Right Purchase.
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(a) Conditions to the Obligations of BellSouth PCS and the Exercising
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Limited Partner. The obligations of BellSouth PCS and the applicable Exercising
---------------
Limited Partner to consummate the Put Right Purchase will be subject to the
satisfaction or waiver, on or prior to the Put Right Purchase Closing Date, of
all of the following conditions, each and all of which may be waived by the
appropriate party or parties:
(i) Approval under Applicable Law. All consents required under
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Applicable Law will have been obtained.
(ii) Absence of Injunction. No temporary restraining order,
---------------------
preliminary or permanent injunction, or similar order issued by a court or
a Governmental Authority of competent jurisdiction will be in effect if the
effect of such order or injunction is to make the Put Right Purchase
illegal or otherwise prohibit consummation of the Put Right Purchase.
(iii) Right of First Refusal. No other Limited Partner will have
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exercised its Right of First Refusal in respect of the Equity Interest to
be transferred by the Exercising Limited Partner.
(iv) Required Lender Consent. The Required Lender Consent shall
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have been obtained.
(b) Additional Conditions to Obligations of BellSouth PCS. The
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obligations of BellSouth PCS to consummate the Put Right Purchase with DukeNet
and Caronet, respectively, will be subject to the satisfaction on or prior to
the Put Right Purchase Closing Date by DukeNet in respect of DukeNet's Put Right
Purchase and by Caronet in respect of Caronet's Put Right Purchase of the all of
the following additional conditions, each and all of which may be waived by
BellSouth PCS:
(i) Representations and Warranties of Limited Partner. Each of the
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representations and warranties of DukeNet or Caronet, set forth in Articles
IV and V, respectively of this Agreement will be true and correct in all
material respects, in each case when made and as of the Put Right Purchase
Closing Date as though made on and as of the Put Right Purchase Closing
Date.
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(ii) Performance of Obligations of Exercising Limited Partner.
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DukeNet or Caronet will have performed or complied in all material respects
with all agreements and covenants required to be performed by it under this
Agreement at or prior to the Put Right Purchase Closing Date.
(iii) Compliance with Partnership Agreement. DukeNet or Caronet, as
-------------------------------------
a Seller within the meaning of Section 10.4 of the Partnership Agreement,
will have complied with the provisions of such section with respect to the
Right of First Refusal and will have certified to BellSouth PCS that it is
free to assign its Equity Interest to BellSouth PCS in accordance with
Section 10.4(c) of the Partnership Agreement (it being agreed by BellSouth
PCS and each of DukeNet and Caronet that this Agreement will constitute an
Outside Offer as defined in the Section 10.4 of the Partnership upon the
giving of a Put Notice).
(iv) Expiration of Put Notice. Three (3) Business Days will have
------------------------
elapsed since the date of the Put Notice.
(v) Assignment. The Exercising Limited Partner will have executed
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and delivered to BellSouth PCS an Assignment of Limited Partnership
Interest with respect to its entire Equity Interest and Voting Interest,
substantially in the form of Annex 6 hereto.
3.4 Put Right Purchase Termination. The obligations of the parties hereto
------------------------------
to consummate the Put Right Purchase with respect to any Exercising Limited
Partner shall be terminated automatically, without any further action of any of
the parties at any time prior to the Put Right Purchase Closing Date for such
Exercising Limited Partner upon the occurrence of any of the following:
(a) By mutual written consent of BellSouth PCS and the Exercising Limited
Partner;
(b) The Exercising Limited Partner has not timely given the Put Notice in
accordance with Section 3.1;
(c) A Final Permanent Purchase Injunction has been entered in respect of
such Exercising Limited Partner's Put Right Purchase; or
(d) One or more Limited Partners have completed the purchase of the
applicable Exercising Limited Partner's Equity Interest pursuant to the Right of
First Refusal.
3.5 BellSouth Call Option. DukeNet and Caronet hereby grant to BellSouth
---------------------
PCS or its designee the right to purchase (the "Call Right"), all but not less
than all, of the Equity Interests and Voting Interests of DukeNet and Caronet
for cash in an amount equal to the Merger Consideration that would have been
payable with respect to such respective Equity Interests. BellSouth PCS may
exercise the Call Right at any time after October 15, 2000, if the Merger
Effective Time has not occurred by such date. The Call Right shall be
exercisable until the earliest of: (i) consummation of the Merger, (ii) 10
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days after DukeNet lifts the Stay Order pursuant to Section 8.5 hereof or (iii)
10 days after the Anniversary Date. BellSouth PCS or its designee may exercise
the Call Right by delivering to each of DukeNet and Caronet written notice (a
"Call Notice") that BellSouth PCS intends to exercise the Call Right. Following
receipt of a Call Notice, DukeNet and Caronet will sell and assign all but not
less than of their respective Equity Interests and Voting Interests on the terms
and subject to the conditions (other than price) set forth in this Article III
as if the sale and purchase were being effected pursuant to the Put Right.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DUKENET
DukeNet hereby warrants and represents to BellSouth PCS that:
4.1 Authority. DukeNet has full corporate power and authority to enter
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into and perform its obligations under this Agreement and to consummate the
transactions contemplated to be consummated by it hereby. The execution and
delivery of, and the performance of, this Agreement by DukeNet have been duly
authorized by all requisite corporate and other action on the part of DukeNet.
This Agreement has been duly and validly executed and delivered by DukeNet and
constitutes the legal, valid and binding obligation of DukeNet, enforceable in
accordance with its terms, except as enforceability may be limited by equitable
principles or by bankruptcy, fraudulent conveyance or insolvency laws affecting
the enforcement of creditors' rights generally.
4.2 Ownership of Interests. DukeNet has good and valid title to the
----------------------
DukeNet Equity Interest, free and clear of any lien, mortgage, claim, charge,
security interest or encumbrance, except for the pledge of its interest pursuant
to the Pledge Agreement (the "DukeNet Pledge Agreement") executed and delivered
in connection with the Credit Agreement.
4.3 No Violation; Consents. Neither DukeNet's execution and delivery of
----------------------
nor DukeNet's performance of its obligations under this Agreement, nor DukeNet's
consummation of the transactions contemplated to be consummated by it hereby,
(i) will, except for the DukeNet Pledge Agreement (but only so long as Required
Lender Consent is not obtained), conflict with, violate or result in a breach of
any of the terms or provisions of, or constitute a default (with or without the
passage of time or giving of notice or both) or give rise to any right of
termination, cancellation or acceleration under any indenture, mortgage, deed of
trust, lease, note, or other contract, agreement or instrument to which DukeNet
is a party or pursuant to which its assets or properties are bound, (ii) will
conflict with any provision of DukeNet's articles of incorporation or bylaws, or
(iii) will violate any Applicable Law or any order, writ, judgment, decree,
stipulation or consent of or with Governmental Authority having jurisdiction.
Except for any approval under the Hart-Scott Act, to the extent necessary, and
the Required Lender
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Consent, no consent, approval, authorization, order, filing, registration or
qualification of or with any Governmental Authority or other Person is required
to be obtained by DukeNet in connection with the execution and delivery of this
Agreement by DukeNet or the consummation of the transactions contemplated to be
consummated by it hereby.
4.4 No Broker. DukeNet has neither retained any broker or finder, nor has
---------
any broker or finder acted on behalf of DukeNet in connection with this
Agreement or the transactions contemplated hereby. DukeNet will be responsible
for the fees and expenses of Merrill Lynch in connection with this Agreement and
the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CARONET
Caronet hereby warrants and represents to BellSouth PCS that:
5.1 Authority. Caronet has full corporate power and authority to enter
---------
into and perform its obligations under this Agreement and to consummate the
transactions contemplated to be consummated by it hereby. Subject to the CP&L
Board Approval, the execution and delivery of, and the performance of, this
Agreement by Caronet has been duly authorized by all requisite corporate and
other action on the part of Caronet. This Agreement has been duly and validly
executed and delivered by Caronet and, upon receipt of the CP&L Board Approval
will constitute the legal, valid and binding obligation of Caronet, enforceable
in accordance with its terms, except as enforceability may be limited by
equitable principles or by bankruptcy, fraudulent conveyance or insolvency laws
affecting the enforcement of creditors' rights generally.
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5.2 Ownership of Interests. Caronet has good and valid title to the
----------------------
Caronet Equity Interest, free and clear of any lien, mortgage, claim, charge,
security interest or encumbrance except for the pledge of its interest pursuant
to the Pledge Agreement (the "Caronet Pledge Agreement") executed and delivered
in connection with the Credit Agreement.
5.3 No Violation; Consents. Neither Caronet's execution and delivery of
----------------------
nor Caronet's performance of its obligations under this Agreement, nor Caronet's
consummation of the transactions contemplated to be consummated by it hereby,
(i) will, except for the Caronet Pledge Agreement (but only so long as Required
Lender Consent is not obtained), conflict with, violate or result in a breach of
any of the terms or provisions of, or constitute a default (with or without the
passage of time or giving of notice or both) or give rise to any right of
termination, cancellation or acceleration under any indenture, mortgage, deed of
trust, lease, note, or other contract, agreement or instrument to which Caronet
is a party or pursuant to which its assets or properties are bound, (ii) will
conflict with any provision of Caronet's articles of incorporation or bylaws, or
(iii) will violate any Applicable Law or any order, writ, judgment, decree,
stipulation or consent of or with Governmental Authority having jurisdiction.
Except for any approval under the Hart-Scott Act, to the extent necessary, and
the Required Lender Consent, no consent, approval, authorization, order, filing,
registration or qualification of or with any Governmental Authority or other
Person is required to be obtained by Caronet in connection with the execution
and delivery of this Agreement by Caronet or the consummation of the
transactions contemplated to be consummated by it hereby.
5.4 No Broker. Caronet has neither retained any broker or finder, nor has
---------
any broker or finder acted on behalf of Caronet in connection with this
Agreement or the transactions contemplated hereby.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND OTHER COVENANTS OF BELLSOUTH PCS
BellSouth PCS hereby represents, warrants and covenants to DukeNet and
Caronet as follows:
6.1 Authority. BellSouth PCS has full corporate power and authority to
---------
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated to be consummated by it hereby. Subject to the
BellSouth Board Approval, the execution and delivery of, and the performance of,
this Agreement by BellSouth PCS has been duly authorized by all requisite
corporate and other action on the part of BellSouth PCS. This Agreement has been
duly and validly executed and delivered by BellSouth PCS and, upon receipt of
the BellSouth Board Approval, will constitute the legal, valid and binding
obligation of BellSouth PCS, enforceable in accordance with its terms, except as
enforceability may be limited by equitable principles
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or by bankruptcy, fraudulent conveyance or insolvency laws affecting the
enforcement of creditors' rights generally.
6.2 No Violation; Consents. Subject to obtaining the Required Lender
----------------------
Consent, neither BellSouth PCS's execution and delivery of nor BellSouth PCS's
performance of its obligations under this Agreement, nor BellSouth PCS's
consummation of the transactions contemplated to be consummated by it hereby,
will (i) conflict with, violate or result in a breach of any of the terms or
provisions of, or constitute a default (with or without the passage of time or
giving of notice or both) or give rise to any right of termination, cancellation
or acceleration under any indenture, mortgage, deed of trust, lease, note, or
other contract, agreement or instrument to which BellSouth PCS is a party or
pursuant to which its assets or properties are bound, (ii) conflict with any
provision of BellSouth PCS's certificate of incorporation or bylaws, or (iii)
violate any Applicable Law or any order, writ, judgment, decree, stipulation or
consent of or with Governmental Authority having jurisdiction. Except for any
approval under the Hart-Scott Act, to the extent necessary, and the Required
Lender Consent, no consent, approval, authorization, order, filing, registration
or qualification of or with any Governmental Authority or other Person is
required to be obtained by BellSouth PCS or the Partnership in connection with
the execution and delivery of this Agreement by BellSouth PCS or the
consummation of the transactions contemplated to be consummated by BellSouth PCS
or the Partnership hereby.
6.3 No Broker. BellSouth PCS has neither retained any broker or finder,
---------
nor has any broker or finder acted on behalf of BellSouth PCS in connection with
this Agreement or the transactions contemplated hereby. BellSouth PCS will be
responsible for the fees and expenses of Lehman Brothers in connection with this
Agreement and the transactions contemplated hereby.
6.4 Securities Compliance. BellSouth acknowledges that the Equity
---------------------
Interests to be transferred and delivered pursuant to the Put Rights granted
pursuant to Article III of this Agreement will not be registered under any
applicable state or federal securities or "blue sky" laws in reliance upon the
exemptions contained therein and in any applicable rules and regulations
promulgated thereunder. The Equity Interests to be transferred and delivered to
BellSouth will be, when transferred and delivered, acquired by BellSouth for its
own account and not with a view to the distribution thereof, and BellSouth
acknowledges that there exist certain restrictions to the transfer of such
Equity Interests in accordance with such laws.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1 Filings, Notices, Other Actions.
-------------------------------
(a) Each of the parties hereto will use (and will cause their respective
Subsidiaries, officers and directors, and will use commercially reasonable
efforts to cause their Affiliates, employees, agents, attorneys, accountants and
representatives, to use)
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their respective commercially reasonable efforts as soon as practicable to take
or cause to be taken all action (including, without limitation, by not
exercising any Rights of First Refusal in respect of the other Limited Partners
transfer to BellSouth PCS pursuant to the exercise of a Put Right), and to do or
cause to be done all things, necessary, proper or advisable on its part under
this Agreement and any Applicable Law to consummate and make effective the
Merger, or after the exercise of a Put Right or the Call Right, to consummate
the applicable purchase with respect thereto, and any other action or
transaction contemplated by this Agreement, including (i) preparing and filing
all documentation and other information to effect all necessary notices,
reports, applications, filings, and other submissions, and to obtain as promptly
as is practicable all consents, approvals, waivers, licenses, permits,
authorizations, registrations, qualifications, decisions, determinations or
other permissions or actions necessary or advisable to be obtained from any
Governmental Authority or any other Person in order to consummate the Merger, or
applicable purchase, with respect to the Put Right or the Call Right, as
applicable and any other transaction contemplated by this Agreement, including
without limitation all of the foregoing with respect to the Hart-Scott Act, any
approval required under Applicable Laws, and the Required Lender Consent; (ii)
providing all such information concerning such party, its Subsidiaries and its
officers, directors, employees, partners and Affiliates as may be necessary or
reasonably requested in connection with any of the foregoing; and (iii) avoiding
the issuance or entry of, or have vacated or terminated, any decree, order,
injunction, judgment, decision or determination (including any Challenging
Litigation) that would, in whole or in part, restrain, prevent or delay the
consummation of the Merger, after the exercise of a Put Right or the Call Right,
the applicable purchase with respect thereto, or any other transaction
contemplated by this Agreement.
(b) Subject to Applicable Laws relating to the exchange of information,
the parties hereto shall have the right to review in advance, and to the extent
practicable to consult the other parties on, all the information relating to the
Partnership, BellSouth PCS, DukeNet, or Caronet, as the case may be, and any of
their respective Subsidiaries, that appear in any filing made with, or written
materials submitted to, any Governmental Authority or any other Person in
connection with the Merger, after the exercise of a Put Right the applicable Put
Right Purchase, and any other transaction contemplated by this Agreement. In
exercising the foregoing right, each of the parties hereto will act reasonably
and as promptly as is practicable.
(c) The parties hereto will keep the other parties reasonably apprised of
the status of matters relating to completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or other
communications received by such parties or any of their respective Subsidiaries
or Affiliates from any third party or any Governmental Authority with respect to
the transactions contemplated by this Agreement.
7.2 Agreement to Vote for Merger. Each of BellSouth PCS, DukeNet and
----------------------------
Caronet will as promptly as practicable (i) cause its Voting Representative on
the Executive Committee to vote in favor of the Merger, subject to the
fulfillment of the conditions set forth in Section 2.4, and to recommend the
Merger to the Limited Partners
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for their approval, (ii) vote against any abandonment of the Merger, and against
any amendment or modification of the Merger Plan, except as specifically
permitted under this Agreement, and (iii) subject to the fulfillment of the
conditions set forth in Section 2.4, vote its Voting Interest in favor of the
Merger, by executing a written consent of the General Partner and Limited
Partners of the Partnership in accordance with the Delaware Limited Partnership
Act (the "Written Consent").
7.3 Vote of Limited Partners. The approval of Limited Partners with
------------------------
respect to the Merger and the Merger Plan will be given pursuant to the
execution of the Written Consent by Limited Partners holding a majority of the
Voting Interests held by all the Limited Partners. The parties agree that no
meeting of the Limited Partners will be called (or is required to be called or
held under the Delaware Limited Partnership Act) with respect to the approval of
the Merger, the Merger Plan or any other transaction contemplated hereby.
Following the receipt of the approval of the Executive Committee referred to in
Section 7.2, BellSouth PCS, as General Partner, will take all action necessary
pursuant to the Delaware Limited Partnership Act and the Partnership Agreement
to cause the Written Consent approving the Merger to be mailed as promptly as
practicable to the Limited Partners, including information regarding the rights
of the Limited Partners with respect to their contractual rights under the
Partnership Agreement and Joint Operating Agreement and the grant of a Put
Right. The Limited Partners shall be given prior written notice of the date by
which their votes are due. Once the Limited Partners have been given notice
thereof, BellSouth PCS will not extend such notice period without the written
consent of DukeNet and Caronet.
7.4 BellSouth Board Approval. BellSouth will submit this Agreement and
------------------------
Merger Plan to the BellSouth Board for approval on or before September 25, 2000.
7.5 CP&L Board Approval. Caronet will submit this Agreement and the
-------------------
Merger Plan to the board of directors of CP&L for approval on or before
September 25, 2000.
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7.6 Further Assurances. The parties hereto agree that, from time to time,
------------------
whether before, at or after the Merger Closing Date or any Put Right Purchase
Closing Date, each of them will execute and deliver such further instruments of
conveyance and transfer and take such other actions as may be necessary to carry
out the purposes and intents of this Agreement.
7.7 Partition Rights and Related Rights. BellSouth PCS, DukeNet, and
-----------------------------------
Caronet agree that nothing in, or in connection with, this Agreement, the
Merger, any Put Right Purchase, or any other action or transaction contemplated
hereby will affect or limit any partitioning rights or other rights of any Rural
Telco under the Joint Operating Agreement. In addition, BellSouth PCS, DukeNet,
and Caronet agree to take all such actions, and to instruct their Voting
Representatives to take all such actions, as may be necessary to cause the
Surviving Corporation, as successor in interest to the Partnership, (i) to
assume the Partnership's obligations under the Joint Operating Agreement; (ii)
to ensure that all partitioning, deep-discount resale, and spectrum
disaggregation rights elected by each Rural Telco pursuant to the Joint
Operating Agreement will continue in full force and effect; and (iii) to effect
such amendments to the Joint Operating Agreement as may be required in
connection with the Merger, including incorporating applicable cross-referenced
provisions (such as first-refusal rights with regard to operating assets) from
the Partnership Agreement in the Joint Operating Agreement, mutatis mutandis,
eliminating references to an Executive Committee and substituting an alternative
to such references that is mutually acceptable to BellSouth PCS and the Rural
Telcos who have partitioned, and making such other changes as are necessary.
7.8 Required Lender Consent. BellSouth PCS shall offer to provide
-----------------------
substitute collateral to Bank of America, N.A. and the others lenders
substantially equivalent to the collateral pledged pursuant to the Credit
Agreement in order to obtain a Release of the Pledge of the DukeNet and Caronet
Equity Interests.
ARTICLE VIII
SPECIAL COVENANTS AND AGREEMENTS WITH RESPECT TO COURT ACTION AND ARBITRATION
8.1 Agreement to Settle. On the terms and subject to the conditions set
-------------------
forth in this Agreement, on the earlier to occur of (i) the Merger Effective
Time, (ii) the Put Right Purchase Closing with respect to DukeNet or Caronet,
and (iii) the closing pursuant to the Call Right, the applicable parties shall
execute the Release. The consideration payable under the Release will be the
Merger Consideration payable under the Merger Plan, the Put Right Purchase Price
payable pursuant to Section 3.1 or the consideration payable under Section 3.5
in respect of the exercise of the Call Right, as appropriate, and each party to
this Agreement acknowledges that such consideration is adequate.
8.2 Court Action. DukeNet, BellSouth and BellSouth PCS shall cause their
------------
attorneys of record in the Court Action: (i) to notify the federal judge before
whom the Court Action is pending of this Agreement and request that court to
expeditiously
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determine the remand motion presently pending in the Court Action, (ii) to
request the federal court, pursuant to the form attached hereto as Annex 7 (the
"Stay Order"), to hold all other motions pending in the Court Action in abeyance
and to otherwise stay the Court Action, (iii) if the federal court fails to act
on the remand motion presently pending in the Court Action on or before
September 15, 2000, the parties will enter into a consent remand order, and once
the Court Action has been remanded to the Mecklenberg County Superior Court, to
request the State Court, pursuant to an order substantially in the form of Annex
7, to hold all motions pending in the Court Action in abeyance and to otherwise
stay the Court Action, and to petition the Mecklenberg County Superior Court for
approval to dismiss the Court Action with prejudice as contemplated by this
Agreement, if and when the Merger has been effected or the Put Right Purchase
has been consummated, and shall give such notice of hearing of that petition to
the Limited Partners as may be required by such court, (iv) if the federal court
grants the Motion to Remand and remands the Court Action to Mecklenburg County
Superior Court, to petition the Mecklenburg County Superior Court for approval
to dismiss the Court Action with prejudice as contemplated by this Agreement, if
and when the Merger has been effected or the Put Right Purchase has been
consummated, and shall give such notice of hearing of that petition to the
Limited Partners as may be required by such court, (v) upon obtaining the
approval referred to in clauses (iii) and (iv) immediately above, to tender for
entry by such court an order in such form as the court may require dismissing
the Court Action, if and when the Merger has been effected or the Put Right
Purchase has been consummated, and (vi) if the federal court rules upon the
remand and determines that the federal court has jurisdiction to decide the
Court Action, then the parties will, by stipulation, dismiss the court action
with prejudice, if and when the Merger has been effected or the Put Right
Purchase has been consummated. DukeNet, BellSouth, BellSouth PCS, and the
Partnership shall take no action inconsistent with the stay of the Court Action,
as set forth in clause (ii) above, including but not limited to conducting
discovery, until such stay is lifted. Except as provided in Section 8.5,
DukeNet, BellSouth, BellSouth PCS, and the Partnership shall take no action to
attempt to lift such stay; provided, however, that if the conditions set forth
in Section 8.5 for lifting of such stay are met, then all parties through
counsel will consent to the stay being lifted by the court. In the event that
DukeNet's Equity Interest is purchased pursuant to the Call Right, DukeNet will
dismiss its individual claims in the Court Action with prejudice and will
dismiss its derivative claims in the Court Action with prejudice with permission
of the court and after such notice to other Limited Partners as the court may
require. If the court will not allow the dismissal of the derivative claims with
prejudice, DukeNet will dismiss such claims without prejudice.
8.3 Agreement to Stay Arbitration Proceeding. On the date hereof, DukeNet
----------------------------------------
and BellSouth PCS (and BellSouth if it is then a party to the Arbitration) shall
cause their attorneys of record in the Arbitration to sign on their behalf a
Stipulation to Stay Proceedings substantially in the form attached as Annex 8
(the "Stay Stipulation") and cause the Stay Stipulation to be filed with the CPR
and forwarded to the attention of the arbitration panel governing the
Arbitration if one has then been selected. DukeNet, BellSouth and BellSouth PCS
shall take no action inconsistent with the stay of the Arbitration effected by
the Stay Stipulation, including but not limited to conducting discovery, until
such stay is lifted. Except as provided in Section 8.5, DukeNet, BSC and
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BellSouth PCS shall take no action to attempt to lift such stay; provided,
however, that if the conditions set forth in Section 8.5 for lifting of such
stay are met, then all parties through counsel will consent to the stay being
lifted.
8.4 Caronet Further Agreements.
--------------------------
(a) Caronet agrees, and agrees to cause its Affiliates, to refrain from
bringing any action, suit or proceeding similar to the claims brought by DukeNet
in the Court Action and the Arbitration unless and until such time as:
(i) the close of business on September 25, 2000 if the BellSouth
Board Approval has not been obtained on or before such time.
(ii) October 15, 2000, if Challenging Litigation is pending and the
Effective Time of the Merger has not occurred on or before such time and
(V) Caronet has notified BellSouth PCS in writing that it does not intend
to exercise its Put Right, (W) Caronet has not, within the time period
required pursuant to Section 3.1, delivered a Put Notice to BellSouth PCS,
(X) and none of BellSouth PCS, DukeNet and Caronet, as the case may be,
have elected to exercise any of the options referred to in Section
2.4(a)(v), (Y) the Defending Group has not tendered the Defense Undertaking
and (Z) BellSouth has not provided an undertaking to Caronet on
substantially the same terms as the Defense Undertaking (the "BellSouth
Defense Undertaking").
(iii) (X) the termination by the Defending Group of its obligation to
provide the defense of Challenging Litigation pursuant to a Defense
Undertaking and BellSouth PCS has not provided the BellSouth Defense
Undertaking or the BellSouth Full Indemnification or (Y) the expiration of
such Defense Undertaking.
(iv) if the Put Right arises by virtue of a failure of any condition
under Section 2.4(a) (other than Section 2.4(a)(v)), upon the earlier of:
(X) Caronet having notified BellSouth PCS in writing that it will not
exercise its Put Right or (Y) Caronet having not, within the time period
required pursuant to Section 3.1, delivered a Put Notice to BellSouth PCS.
(v) September 25, 2000, if the CP&L Board Approval has not been
obtained on or before the close of business on such date.
(vi) (X) the termination by BellSouth PCS of its obligations to
provide the defense of Challenging Litigation pursuant to the BellSouth
Defense Undertaking, where BellSouth PCS has not exercised the Call Right
or (Y) the expiration of such Defense Undertaking.
Further, Caronet agrees to indemnify and hold BellSouth PCS and BellSouth
harmless in the event any Affiliate of Caronet brings any action, suit or
proceeding similar to the claims brought by DukeNet in the Court Action and
the Arbitration other than as otherwise permitted by this Agreement.
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(b) Tolling Agreement. Caronet, BellSouth and BellSouth PCS agree that all
-----------------
statutes of limitation, statutes of repose and all other time-related defenses
shall be tolled as of the date of this Agreement with respect of any claims or
potential claims that Caronet, individually or derivatively as a limited partner
on behalf of the Partnership, could or might have against BellSouth and
BellSouth PCS that are based on the same facts and events as the claims
described in the Notice of Arbitration (Recital E) and the Court Action.
Caronet, BellSouth and BellSouth PCS agree that the tolling period shall
terminate on the earlier of October 25, 2001, or the date upon which BellSouth
PCS purchases Caronet's Equity Interest pursuant to the Call Right or the Put
Right. Neither this provision nor any acts or statements related thereto shall
constitute any admission or acknowledgement of liability, nor shall it be used
as evidence in any proceeding, except to enforce the terms of this provision.
Caronet, BellSouth and BellSouth PCS expressly reserve all rights, claims or
defenses that each of them has as of the date of execution of this Agreement,
unless such rights, claims or defenses are waived in this Agreement. It is
agreed that nothing herein shall be construed as a limitation upon or waiver of
any valid claim or defense that Caronet, BellSouth and BellSouth PCS may
otherwise have.
8.5 Lifting of Stay Order. (a) Upon the occurrence of any one or more of
---------------------
the following, DukeNet will have the right, exercisable in DukeNet's sole
discretion and with court approval as required, to terminate the stays of the
Court Action and Arbitration provided for in Sections 8.2 and 8.3, subject to
Section 8.5(b):
(i) if the BellSouth Board Approval has not been obtained on or
before the close of business on September 25, 2000.
(ii) if Challenging Litigation is pending and the Effective Time of
the Merger has not occurred on or before October 15, 2000 and (V) DukeNet
has notified BellSouth PCS in writing that it does not intend to exercise
its Put Right, (W) DukeNet has not, within the time period required
pursuant to Section 3.1, delivered a Put Notice to BellSouth PCS, (X) none
of BellSouth, DukeNet and Caronet, as the case may be, have elected to
exercise any of the options referred to in Section 2.4(a)(v), (Y) the
Defending Group has not tendered the Defense Undertaking and (Z) BellSouth
has not provided the BellSouth Defense Undertaking or the BellSouth Full
Indemnity.
(iii) if the Put Right arises by virtue of a failure of any condition
under Section 2.4(a) (other than Section 2.4(a)(v)), upon the earlier of:
(X) DukeNet having notified BellSouth PCS in writing that it will not
exercise its Put Right or (Y) DukeNet having not, within the time period
required pursuant to Section 3.1, delivered a Put Notice to BellSouth PCS.
(iv) (X) if the Defending Group has terminated its obligation to
provide the defense of Challenging Litigation pursuant to a Defense
Undertaking and BellSouth has not provided the BellSouth Defense
Undertaking or the BellSouth Full Indemnification or (Y) the expiration of
such Defense Undertaking.
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(v) (X) the termination by BellSouth PCS of its obligations to
provide the defense of Challenging Litigation pursuant to the BellSouth
Defense Undertaking, where BellSouth PCS has not exercised the Call Right
or (Y) the expiration of such Defense Undertaking.
(b) Notwithstanding the right of DukeNet under Section 8.5(a) to terminate
the stays of the Court Action and Arbitration, unless such right arises out of
the failure to obtain BellSouth Board Approval under Section 8.5(a)(i), DukeNet
will no longer be permitted to pursue its request or demand for a Newco
Contribution Injunction and DukeNet will take such actions as are reasonably
requested by BellSouth PCS to withdraw and dismiss such request and demand in
the Court Action and the Arbitration.
(c) In the event that DukeNet exercises any of its rights under Section
8.5(a) to terminate the stays of the Court Action or the Arbitration, neither
BellSouth, BellSouth PCS, Caronet nor DukeNet by execution of this Agreement
shall be deemed to have waived, compromised, or released, or otherwise modified
any claim, defense, protection or argument asserted or that could be, or could
have been, asserted in either the Court Action or the Arbitration, except as set
forth in Section 8.5(b).
8.6 BellSouth Covenant Regarding Contribution to Newco. Until the
--------------------------------------------------
earliest to occur of any one of the following, BellSouth and BellSouth PCS
covenant and agree with DukeNet and Caronet that they will not effect the
contribution or assignment of BellSouth PCS, directly or indirectly through the
contribution or assignment of any other Person, to Newco, or to any successor,
assign or Affiliate of Newco, without the prior written consent of DukeNet:
(i) the Merger Effective Time;
(ii) the Put Right Purchase Closing with respect to the DukeNet
Equity Interest;
(iii) three (3) Business Days after the earlier to occur of the
following: (X) DukeNet has notified BellSouth PCS in writing that it will
not exercise its Put Right or (Y) DukeNet has not, within the time period
required pursuant to Section 3.1, delivered a Put Notice to BellSouth PCS;
(iv) if Challenging Litigation has been instituted, three (3)
Business Days after the earliest to occur of the following: (X) October 15,
2000, if the Defending Group has not provided the Defense Undertaking or
the Full Indemnification or entered into the Equal Contribution Agreement
on or before such date; and (Y) the date upon which the Defending Group
provides the Defense Undertaking.
(v) provision by BellSouth of the BellSouth Full Indemnity;
(vi) provision by BellSouth of the BellSouth Defense Undertaking;
provided, that BellSouth PCS confirms in writing its agreement to exercise
the Call Right upon the earliest to occur of (a) the Anniversary Date, (b)
the date
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upon which BellSouth terminates such Defense Undertaking or (c) a Final
Permanent Merger Injunction has been instituted; or
(vii) the closing in respect of the exercise of the Call Right with
respect to the Duke Net Equity Interest.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. Except as otherwise expressly provided in this Agreement,
--------
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, counsel, accountants and financial advisors. In the event of
termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a breach of
this Agreement by another party.
9.2 Public Announcements. The parties hereto shall consult with each
--------------------
other before issuing any press release or otherwise making any public statements
with respect to the transactions contemplated hereby and shall not issue any
such press release or make any such public statement that is not approved by the
other parties, except as may be required by law or court order, in which case
the parties will make reasonable efforts to consult with each other prior to the
making of such public statement.
9.3 Notices. All notices, consents, waivers and other communications
-------
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
If to BellSouth:
BellSouth Personal Communications, Inc.
c/o BellSouth Corporation
1155 Peachtree Road N.E.
Suite 2000
Atlanta, Georgia 30309
Attention: Vice President-Corporate Development
Facsimile: (404) 249-2658
24
<PAGE>
with a copy to:
BellSouth Corporation
1155 Peachtree Road N.E.
Suite 2000
Atlanta, Georgia 30309
Attention: General Counsel
Facsimile: (404) 249-5948
If to DukeNet:
DukeNet Communications, Inc.
422 South Church Street, PB03R
Charlotte, North Carolina 28242
Attention: M. H. Smith, Jr., President
Facsimile: (704) 382-8137
with a copy to:
Robinson, Bradshaw & Hinson, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Attention: Peter C. Buck, Esq.
Facsimile: (704) 378-4000
If to Caronet:
Caronet, Inc.
411 Fayetteville Street Mall
Raleigh, North Carolina 27602
Attention: Peter M. Scott, III
Facsimile: (919) 546-3805
with a copy to:
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street
P.O. Box 31247
Charlotte, North Carolina 28231
Facsimile: 704-334-8467
Attention: John B. Yorke, Esq.
or to such other address as hereafter shall be furnished by any of the parties
hereto to the other parties hereto.
25
<PAGE>
9.4 Dispute Resolution. Subject to Section 8.5(c), each of the parties
------------------
agrees that at least thirty (30) days' prior to asserting any claim arising out
of or related to this Agreement against any other party hereunder, a party to
this Agreement shall first give the other parties written notice of the dispute.
During such thirty (30) day period, the parties shall negotiate in good faith
toward a resolution of such dispute and subject to the expiration (or early
termination by agreement of all the parties to the dispute) of such thirty (30)
day period, any and all disputes related to, arising out of or in connection
with the execution, interpretation, performance or non-performance of this
Agreement shall be solely and finally settled, subject to the last sentence
hereof, in the manner provided for in Sections 15.12 and 15.13 of the
Partnership Agreement. Such Sections 15.12 and 15.13 are incorporated herein by
reference, mutatis mutandis. Each of the parties agrees to voluntarily submit to
----------------
such arbitration.
9.5 Further Assurances. Each of the parties hereto will use commercially
------------------
reasonable efforts to perform or fulfill all conditions and obligations to be
performed or fulfilled by it under this Agreement so that the transactions
contemplated hereby shall be consummated. Except for events that are the subject
of specific provisions of this Agreement, if any event should occur, either
within or outside the control of the parties, that would materially delay or
prevent fulfillment of the conditions upon the obligations of any party hereto
to consummate the transactions contemplated by this Agreement, the parties will
use their respective commercially reasonable efforts to cure or minimize the
same as expeditiously as possible. In connection with the foregoing, each party
agrees to execute and deliver to each other such other documents and to do such
other acts and things, all as the other party may reasonably request for the
purpose of carrying out the intent of this Agreement.
9.6 Waiver. The rights and remedies of the parties to this Agreement are
------
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by Applicable Law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by such party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
9.7 Entire Agreement and Modification. This Agreement supersedes all
---------------------------------
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement, and all annexes hereto, may not
be amended except by a written agreement executed by each of the parties hereto.
26
<PAGE>
9.8 Assignments, Successors and No Third-Party Rights. No party may
-------------------------------------------------
assign any of its rights under this Agreement without the prior consent of the
other parties, which will not be unreasonably withheld; provided, however, that
any party may assign any of its rights under this Agreement to any Affiliate of
such party, or Newco, in the case of BellSouth PCS. No such assignment will
release the assigning party from its obligations hereunder except to the extent
specifically agreed by all other parties. Subject to the preceding sentence,
this Agreement will apply to, be binding in all respects upon and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
(other than the parties to this Agreement and, with respect to Article III of
this Agreement, the Rural Telcos), any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
9.9 Severability. If any provision of this Agreement is held invalid or
------------
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.10 Section Headings, Construction. The headings of Sections in this
------------------------------
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
9.11 Time of Essence. With regard to all dates and time periods set forth
---------------
or referred to in this Agreement, time is of the essence.
9.12 Governing Law. This Agreement will be governed by the laws of the
-------------
State of Delaware without regard to conflicts of laws principles.
9.13 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
9.14 Survival. All representations, warranties and covenants of any party
--------
contained herein and in the certificates delivered pursuant to this Agreement
shall remain operative and in full force and effect and shall survive the
consummation of the transactions contemplated hereby.
[The remainder of this page is blank intentionally;
The signature page immediately follows]
27
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first set forth above by the undersigned authorized representatives of
the parties hereto.
BELLSOUTH CORPORATION
By: /s/ Keith O. Cowan
---------------------------------------
Name: Keith O. Cowan
Title: Vice President - Corporate Development
BELLSOUTH PERSONAL COMMUNICATIONS, INC.
By: /s/ Thomas M. Meiss
---------------------------------------
Name: Thomas M. Meiss
Title: Vice President
BELLSOUTH CAROLINAS PCS, L.P.
By: BellSouth Personal Communications,
Inc., its General Partner
By: /s/ Thomas M. Meiss
---------------------------------------
Name: Thomas M. Meiss
Title: Vice President
DUKENET COMMUNICATIONS, INC.
By: /s/ Robert S. Lilien
---------------------------------------
Name: Robert S. Lilien
Title: Chairman
CARONET, INC.
By: /s/ Peter M. Scott, III
---------------------------------------
Name: Peter M. Scott, III
Title: President
28
<PAGE>
Annex 1
AGREEMENT AND PLAN OF MERGER
between
BELLSOUTH CAROLINAS PCS, L.P.,
a Delaware Limited Partnership
and
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
a Delaware Corporation
AGREEMENT AND PLAN OF MERGER, made and entered into as of September __,
2000, by and between BellSouth Carolinas PCS, L.P., a Delaware limited
partnership (the "Partnership"), and BellSouth Personal Communications, Inc., a
Delaware corporation ("BSPCI"), as approved by a written consent executed by
BSPCI, as the General Partner of the Partnership, Executive Committee and the
Limited Partners holding a majority of the limited partnership interests of the
Partnership and by resolutions adopted by the Board of Directors of BSPCI.
W I T N E S S E T H:
-------------------
WHEREAS, the Partnership was formed on December 9, 1994 under the Delaware
Revised Uniform Limited Partnership Act pursuant to the Limited Partnership
Agreement dated as of December 8, 1994 (the "Partnership Agreement"; capitalized
terms used herein and not otherwise defined herein being used or defined in the
Partnership Agreement); and,
WHEREAS, BSPCI was incorporated under the Delaware General Corporation Law
and BSPCI is the General Partner of the Partnership; and,
WHEREAS, the Board of Directors of BSPCI and the Executive Committee of the
Partnership, the General Partner and Limited Partners holding a majority of the
interest of the Partnership deem it advisable and to the advantage, welfare, and
best interests of the respective entities and their respective equity holders
that the Partnership merge with and into BSPCI pursuant to the provisions of the
Delaware General Corporation Law and the Delaware Revised Uniform Limited
Partnership Act, upon the terms and conditions hereinafter set forth; and,
WHEREAS, BSPCI shall be the surviving entity in the merger, and upon such
merger the Partnership 's existence shall cease in accordance with the
provisions of the
1
<PAGE>
Delaware General Corporation Law and the Delaware Revised Uniform Limited
Partnership Act;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements of the parties hereto, being thereunto duly approved by resolutions
adopted by the Board of Directors of BSPCI and by approval of the Executive
Committee of the Partnership, and the written consent executed by the General
Partner and Limited Partners holding a majority of the limited partnership
interests of the Partnership pursuant to the provisions of the Delaware General
Corporation Law and the Delaware Revised Uniform Limited Partnership Act, the
Agreement and Plan of Merger (the "Agreement and Plan") and the terms and
conditions thereof, the mode of carrying the same into effect, together with any
provisions required or permitted to be set forth therein, which are hereby
determined and agreed upon for submission to the sole shareholder of BSPCI, are
set forth below:
PLAN OF MERGER
--------------
1. The names of the entities proposing to merge pursuant to this
Agreement and Plan are BellSouth Carolinas PCS, L.P., a Delaware limited
partnership, and BellSouth Personal Communications, Inc., a Delaware corporation
("Surviving Company"). The Surviving Company shall be BSPCI which shall, at the
effective time of the merger, continue to be known as "BellSouth Personal
Communications, Inc."
2. The terms and conditions of the proposed merger and the mode of
carrying it into effect are as follows:
(a) the Partnership shall merge with and into BSPCI which shall
thereupon be a single company, and that company, the Surviving Company, shall be
BSPCI.
(b) The separate existence of the Partnership shall cease.
(c) The Surviving Company shall have all the rights, privileges,
immunities and powers and shall be subject to all the duties and liabilities of
a corporation organized under the Delaware General Corporation Law.
(d) The Surviving Company shall thereupon and thereafter possess all
the rights, privileges, immunities and franchises, of a public as well as a
private nature, of the Partnership and BSPCI. All property, real, personal and
mixed, and all debts due on whatever account, including subscriptions to shares
or partnership interests, all other choses in action and all and every other
interest of or belonging to or due the Partnership and BSPCI shall be taken and
deemed to be transferred to and vested in the Surviving Company without further
act or deed; and the title to any real estate, or any interest therein, vested
in the Partnership and BSPCI shall not revert or be in any way impaired by
reason of such merger.
(e) The Surviving Company shall thenceforth be responsible and liable
for all the liabilities and obligations of the Partnership and BSPCI and any
claim existing
2
<PAGE>
or action or proceeding pending by or against the Partnership and BSPCI may be
prosecuted as if the merger had not taken place or the Surviving Company may be
substituted in its place. Neither the right of creditors nor any liens upon the
property of the Partnership or BSPCI shall be impaired by such merger.
(f) Without limiting the foregoing, upon the consummation of the
merger, the obligations of the Partnership assumed by BSPCI, as the Surviving
Company, include those under the Joint Operating Agreement dated as of July 1,
1999 (the "JOA") among the Partnership, BSPCI and the Rural Telcos listed
therein. The JOA will continue in effect, as will the Rural Telcos'
partitioning, deep discount resale, or spectrum disaggregation rights (as
applicable), in accordance with the respective elections the Rural Telcos have
made (if any), except that the JOA will be amended pursuant to a written
agreement to be entered into by the Surviving Company and the Rural Telcos to
reflect the absence of the Partnership Agreement and an Executive Committee.
3. The present Certificate of Incorporation of BSPCI shall constitute the
Certificate of Incorporation of said Surviving Company and said Certificate of
Incorporation shall continue in full force and effect until further amended and
changed in the manner prescribed by the provisions of the Delaware General
Corporation Law.
4. The present By-laws of BSPCI shall be the By-laws of said Surviving
Company and shall continue in full force and effect until altered or amended as
therein provided and in the manner prescribed by the Delaware General
Corporation Law.
5. The directors of BSPCI immediately prior to the Merger Effective Time
(defined below) shall be the directors of the Surviving Company.
6. The officers of BSPCI immediately prior to the Merger Effective Time
shall be the officers of the Surviving Company.
7. At the Merger Effective Time (defined below), all of the partnership
interests in the Partnership held by BSPCI (or its legal successor), shall be
cancelled without further consideration. At the Merger Effective Time (defined
below), all of the issued and outstanding partnership interests in the
Partnership held by any person or entity other than BSPCI shall be converted
into and become the right to receive, cash in an amount equal to the product
obtained by multiplying (i) $2 billion by (ii) the Equity Interest held by such
person or entity at the Merger Effective Time (the "Merger Consideration"),
without interest thereon, payable by wire transfer in immediately available
funds by the Surviving Corporation to the holder of such partnership interest.
After the Merger Effective Time (defined below), each holder of a limited
partnership interest in the Partnership that was converted into the right to
receive the Merger Consideration pursuant to this Agreement will be deemed to
have withdrawn as a limited partner and will have no further interest in the
Partnership or the Surviving Corporation, other than the right to receive the
Merger Consideration.
3
<PAGE>
8. At the Merger Effective Time (defined below), all shares of BSPCI issued
and outstanding immediately prior to such effective time, shall be converted,
without further action, into the same number of shares of common stock, par
value $.01 per share, in the Surviving Company.
9. The holders of interests in the Partnership will not be entitled to
any appraisal rights as a result of or in connection with the merger.
10. The Agreement and Plan herein made and entered into has been approved
by a majority of the Limited Partners of the Partnership in the manner
prescribed by the Delaware Revised Uniform Limited Partnership Act and the
Partnership Agreement.
[11. In the event that this Agreement and Plan shall have been adopted by
the sole shareholder of BSPCI in accordance with the provisions of the Delaware
General Corporation Law,] the Partnership and BSPCI agree that they shall cause
to be executed and filed or recorded any document or documents prescribed by the
laws of the State of Delaware and that they shall cause to be performed all
necessary acts within the State of Delaware and elsewhere to effectuate the
merger, including the filing of a certificate of merger substantially in the
form of Schedule 1 hereto (the "Certificate of Merger") with the Secretary of
State of the State of Delaware.
12. The merger shall be effective at such time as is specified in the
Certificate of Merger (the "Merger Effective Time").
13. The Board of Directors and proper officers of BSPCI and the proper
officers of BSPCI, as the General Partner of the Partnership are hereby
authorized, empowered, and directed to do any and all acts and things, and to
make, execute, deliver, file, and record any and all instruments, papers, and
documents which shall be or become necessary, proper, or convenient to carry out
or put into effect any of the provisions of this Agreement and Plan or of the
merger herein provided for.
14. This Agreement and Plan shall be construed in accordance with and
governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
4
<PAGE>
IN WITNESS WHEREOF, the parties to this Agreement and Plan, pursuant to the
approval and authority duly given by resolutions adopted by the Executive
Committee of the Partnership and a written consent duly executed by the General
Partner and a majority of the Limited Partners of the Partnership, and by
resolutions adopted by the Board of Directors of BSPCI, have caused these
presents to be executed on behalf of the Partnership by the proper officers of
BSPCI, as the General Partner of the Partnership, and on behalf of BSPCI by the
proper officers of BSPCI, as the respective act, deed and agreement of each said
entity, as of September __, 2000.
BELLSOUTH CAROLINAS PCS, L.P.,
By: BELLSOUTH PERSONAL
COMMUNICATIONS, INC., its General Partner
By: __________________________________________________
Attest: Name: ____________________________________________
Title: ___________________________________________
__________________________________
__________________, Assistant Secretary
[Corporate Seal]
BELLSOUTH PERSONAL
COMMUNICATIONS, INC.
By: __________________________________________________
Attest: Name: ____________________________________________
Title: ___________________________________________
__________________________________
__________________, Assistant Secretary
[Corporate Seal]
5
<PAGE>
Schedule 1 to Annex 1
CERTIFICATE OF MERGER
OF
BELLSOUTH CAROLINAS PCS, L.P.
with and into
BELLSOUTH PERSONAL COMMUNICATIONS, INC.
(Under Section 263 of the General Corporation Law
of the State of Delaware and Section 17-211 of the
Delaware Revised Uniform Limited Partnership Act)
The undersigned corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, 8 Del.C. (S)101, et seq.
------ -- ---
(the "GCL"),
DOES HEREBY CERTIFY:
FIRST: The name and jurisdiction of formation or organization of each of
the constituent entities which is to merge are as follows:
Jurisdiction of
Name Formation or Organization
---- -------------------------
BellSouth Carolinas PCS, L.P. Delaware
BellSouth Personal Communications, Inc. Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent entities in
accordance with Section 263(c) of the GCL, Section 17-211 of the Delaware
Revised Uniform Limited Partnership Act, 6 Del.C. (S) 17-101 et seq., [and, with
------ -- ---
respect to BellSouth Personal Communications, Inc., Section 228 of the GCL.]
THIRD: The name of the surviving Delaware corporation is BellSouth
Personal Communications, Inc.
FOURTH: The certificate of incorporation of BellSouth Personal
Communications, Inc. immediately prior to the merger shall be the certificate of
incorporation of the surviving corporation.
1
<PAGE>
FIFTH: The merger of BellSouth Carolinas PCS, L.P. into BellSouth Personal
Communication, Inc. shall be effective [upon the filing of this Certificate of
Merger with the Secretary of State of the State of Delaware.] [or] [on
_____________ ___, 2000, at ______ o'clock __.m. eastern daylight time]
SIXTH: The executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is [1155 Peachtree
Street, NE, Suite 1800, Atlanta, Georgia 30309.]
SEVENTH: A copy of the Agreement and Plan of Merger will be furnished by
the surviving corporation, on request and without cost, to any partner of
BellSouth Carolinas PCS, L.P., and to any person holding an interest in
BellSouth Personal Communications, Inc.
IN WITNESS WHEREOF, BellSouth Personal Communications, Inc. has caused this
Certificate of Merger to be executed as of the ___ day of ______, 2000.
BELLSOUTH PERSONAL
COMMUNICATIONS, INC.
By: _____________________
Name:
Title:
Attest:
By: _______________
Name:
Title:
[Corporate Seal]
2
<PAGE>
Annex 2
Equity Interests/1/
================
DukeNet 20.0000%
Caronet 10.0000%
Cook Inlet PCS Inc. 4.2353
Atlantic Telephone 0.2319
Bluffton Telephone 0.0719
Chesnee Telephone 0.0791
Chester Telephone 0.1589
Citizens Telephone 0.0882
Concord Telephone 1.9595
Farmers Telephone 1.0166
Fort Mill Telephone 0.1390
Hargray Telephone 0.2159
Hart Telephone 0.0667
Heath Springs Telephone 0.0076
Home Telephone 0.6533
Horry Telephone 0.9121
Lancaster Telephone 0.2223
Lexcom Telephone 0.3906
Lockhart Telephone 0.0040
North State Telephone 0.9832
Palmetto Rural Telephone 0.1169
Piedmont Rural Telephone 0.2099
Piedmont Telephone 0.0240
Pond Branch Telephone 0.1507
Ridgeway Telephone 0.0684
Rock Hill Telephone 0.7308
Sandhill Telephone 0.1368
Skyline Telephone 0.2541
Star Wireless 0.3652
Surry Telephone 0.3006
Tri-County Telephone 0.0247
West Carolina Rural Telephone 0.1267
Yadkin Valley Telephone 0.2904
_______________________________
/1/ The General Partner, BellSouth PCS, owns 55.7647%.
1
<PAGE>
ANNEX 3
MUTUAL RELEASE
--------------
This MUTUAL RELEASE (the "Agreement") is made and entered into by and
between DukeNet Communications, Inc. ("DukeNet"), Caronet, Inc. ("Caronet"),
BellSouth Corporation ("BSC"), and BellSouth Personal Communications, Inc.
("BSPCI") (collectively the "Parties").
WITNESSETH
WHEREAS, on July 27, 2000, DukeNet filed a lawsuit ("the "Court Action")
against BSC and BSPCI in the Superior Court of Mecklenburg County, North
Carolina. The Court Action was filed as Civil Action No. 00-CVS-11053 in the
Superior Court. The Court Action was removed to the United States District
Court for the Western District of North Carolina and is filed in the District
Court as Civil Action No. 3:00 CV 384 MU. In the Court Action, DukeNet has
requested a preliminary injunction that would prohibit BSC from causing or
allowing BSPCI or its successors to be contributed to, participate in, or be a
party to the proposed nationwide cellular joint venture with SBC Communications
Inc. ("Newco");
WHEREAS, on July 27, 2000, DukeNet also filed a Notice of Arbitration
against BSPCI before the Center for Public Resources (the "Arbitration"). In
the Arbitration, DukeNet sought damages and other relief in connection with
creation of Newco; and
WHEREAS, DukeNet, Caronet, BSC and BSPCI desire to settle fully and finally
certain differences between them including those differences embodied in the
Court Action and the Arbitration;
1
<PAGE>
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. DukeNet will immediately prepare a consent order of dismissal with
prejudice of the Court Action and a stipulation of dismissal with prejudice of
the Arbitration, which will be promptly executed by DukeNet, BSC and BSPCI.
DukeNet and BSC and BSPCI will take prompt steps to have the aforementioned
consent order signed and entered by the Judge before whom the Court Action is
then pending (pursuant to the procedures and provisions of Section 8.2 of the
Agreement to Settle and Merger Plan) and to have the aforementioned stipulation
filed with the Center for Public Resources.
2. (a) For and in consideration of BSC and BSPCI's execution of that
certain Agreement to Settle and Merger Plan and their release of certain claims
and rights as described in Paragraph 2(b) below, the receipt and sufficiency of
which are hereby acknowledged, DukeNet and Caronet, duly authorized, do for
themselves and for their successors and assigns and remise, release and forever
discharge BSC and BSPCI, their parent and subsidiary corporations, divisions and
affiliated companies, the officers, directors, agents, servants, employees and
attorneys thereof, and all successors and assigns from any and all claims,
rights, causes of action, demands, actions, suits, damages, losses and expenses
of whatever kind or nature, whether known or unknown, arising out of or by
reason of (1) BSPCI's and BSC's duties, or alleged breach of duties, if any, to
BellSouth Carolinas PCS, L.P. or any of its limited partners that arise out of
BSPCI's position or status as the General Partner of BellSouth Carolinas PCS,
L.P, (2) BSPCI's alleged breach of that certain BellSouth Carolinas PCS, L.P
Limited Partnership Agreement made and entered into as of the 8th day of
2
<PAGE>
December, 1994, and (3) any change in control of BSPCI. This release includes,
but is not limited to, a release of all claims asserted in the Court Action or
the Arbitration.
(b) For and in consideration of DukeNet and Caronet's execution of
that certain Agreement to Settle and Merger Plan and their release of certain
claims and rights as described in Paragraph 2(a) above, the receipt and
sufficiency of which are hereby acknowledged, BSC and BSPCI, duly authorized, do
for themselves and for their successors and assigns and remise, release and
forever discharge DukeNet and Caronet, their parent and subsidiary corporations,
divisions and affiliated companies, the officers, directors, agents, servants,
employees and attorneys thereof, and all successors and assigns from any and all
claims, rights, causes of action, demands, actions, suits, damages, losses and
expenses of whatever kind or nature, whether known or unknown, arising from or
relating to DukeNet's filing of the Court Action or the Arbitration.
(c) The Parties acknowledge that DukeNet, Caronet, BSPCI and
BellSouth Carolinas PCS, L.P. have a number of other contractual and business
relationships that the foregoing releases are not meant to, and shall not,
affect, including, but not limited to, certain contracts and relationships
relating to provision of wireless telephone service, provision of electrical
power, provision of fiber optic capacity, real estate leases, and tower space
leases for transmitters.
3. DukeNet, Caronet, BSC and BSPCI will not hereafter file or pursue any
suit, claim, derivative action, grievance, charge, complaint, arbitration, or
other proceeding about anything remised, released or forever discharged in
Paragraph 2 above.
3
<PAGE>
4. Nothing in this Mutual Release is intended or shall be construed to
bar any action to enforce this Agreement or that certain Agreement to Settle and
Merger Plan.
5. (a) DukeNet and Caronet represent and warrant that no person or
entity other than themselves are entitled to assert any of their individual
claims, and that no claim released herein has been assigned or transferred to
any person or entity, and DukeNet and Caronet hereby agree to indemnify and hold
harmless BSC and BSPCI, their parent and subsidiary corporations, divisions and
affiliated companies, the officers, directors, agents, servants, employees and
attorneys thereof, and all successors and assigns from and against any liability
or expenses resulting from any such claim's having been assigned or transferred.
(b) BSC and BSPCI represent and warrant that no person or entity
other than themselves are entitled to assert any of their individual claims, and
that no such claim released herein has been assigned or transferred to any
person or entity, and BSC and BSPCI hereby agree to indemnify and hold harmless
DukeNet and Caronet, their parent and subsidiary corporations, divisions and
affiliated companies, the officers, directors, agents, servants, employees and
attorneys thereof, and all successors and assigns from and against any liability
or expenses resulting from any such claim's having been assigned or transferred.
6. In the event that DukeNet, Caronet, BSC or BSPCI breaches this Mutual
Release and enforcement of the Mutual Release or recovery of damages for breach
hereof is obtained by law or legal proceeding, including but not limited to
arbitration, through an attorney at law, all costs of enforcement or recovery,
including reasonable
4
<PAGE>
attorneys' fees, shall be paid by the breaching party to the non-breaching party
that obtained enforcement of the Agreement or recovered damages from its breach.
7. (a) DukeNet and Caronet acknowledge that BSC and BSPCI contend that
their conduct has been lawful at all times and has not violated any contract,
law, duty, obligation, or regulation.
(b) BSC and BSPCI acknowledge that DukeNet and Caronet contend that
their conduct has been lawful at all times and has not violated any contract,
law, duty, obligation, or regulation.
8. This Mutual Release was negotiated and delivered within the State of
Georgia and is intended to be construed in accordance with the laws of the State
of Georgia. The consideration recited herein is given in compromise of disputed
claims and does not constitute admission of liability by any party. DukeNet,
Caronet, BSC and BSPCI each affirm that the only consideration for the execution
of their releases is the receipt of the consideration stated in Paragraph 2
above, and that no other promise or thing of value of any kind has been made or
offered to it by any person or entity whatsoever to cause it to execute this
Mutual Release.
9. This Agreement is and shall be deemed jointly drafted and written by
all Parties to it and shall not be construed or interpreted against any party as
having originated or prepared it.
10. This Mutual Release and that certain Agreement to Settle and Merger
Plan, and the other attachments to the Agreement to Settle and Merger Plan
constitute the entire agreement between the Parties pertaining to settlements or
releases and supersede any prior settlement or release discussions, promises,
representations,
5
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agreements or understandings, and there are no settlement or release promises,
representations, agreements or understandings between the Parties other than as
set forth in this Mutual Release and that certain Agreement to Settle and Merger
Plan, and the other attachments to the Agreement to Settle and Merger Plan.
11. No person is, or will be, authorized by any party orally to modify,
terminate or waive any provision of the Mutual Release, or orally to make any
additional or other agreement related to the Mutual Release or its subject
matter. Any discussions or conversations pertaining to such modification,
termination, waiver or the addition of another agreement are to be considered
preliminary and non-binding. If any such modification, termination, waiver or
additional agreement is in the future authorized by, or to be binding on, a
party hereto, it will be set forth in a writing signed by a representative of
each party.
12. DukeNet, Caronet, BSC, and BSPCI represent and agree that they are
executing this Mutual Release as their own free acts. DukeNet, Caronet, BSC, and
BSPCI represent and agree that they have carefully read this Mutual Release and
have had the opportunity to seek, and have sought, from lawyers such advice as
they deem appropriate with respect to signing this Mutual Release or the meaning
of it. DukeNet, Caronet, BSC and BSPCI have undertaken such independent
investigation and evaluation as they deem appropriate and are entering this
Mutual Release in reliance on that and not in reliance on any advice,
disclosure, representation or information provided by, or expected from, any
other party or party's lawyers. DukeNet, Caronet, BSC, and BSPCI represent and
agree that this is an agreement of settlement and compromise, made in
recognition that the Parties may have different or incorrect
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understandings, information and contentions, as to facts and law, and with each
party compromising and settling any potential correctness or incorrectness of
its understandings, information and contentions as to the facts and law, so that
no misunderstanding or misinformation and no claim of fraudulent inducement
shall be a ground for rescission of this Mutual Release.
13. The undersigned, by their execution of this Mutual Release, represent
that they are duly authorized to enter into the Mutual Release on behalf of
DukeNet, Caronet, BSC and BSPCI, respectively, and that their signatures to the
Mutual Release bind their respective principals to the terms of the Mutual
Release.
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IN WITNESS WHEREOF, the Parties hereunto have executed this Mutual Release.
DUKENET COMMUNICATIONS, INC.
By:______________________________________
Name:__________________________________
Title:_________________________________
CARONET, INC.
By:______________________________________
Name:__________________________________
Title:_________________________________
BELLSOUTH CORPORATION
By:______________________________________
Name:__________________________________
Title:_________________________________
BELLSOUTH PERSONAL COMMUNICATIONS, INC.
By:______________________________________
Name:__________________________________
Title:_________________________________
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Annex 4
DEFENSE UNDERTAKING
-------------------
The undersigned DukeNet, Caronet, or DukeNet and Caronet jointly and
severally (the "Defending Group"), for themselves, their successors, and
assigns, hereby undertake, covenant, and agree with and for the benefit of the
Indemnitees (as defined herein) as follows:
1. The Defending Group will indemnify BellSouth Personal Communications,
Inc., BellSouth Corporation, all Affiliates of BellSouth Corporation (as defined
in that certain Agreement to Settle and Merger Plan dated as of September 11,
2000 (the "Settlement Agreement") between BellSouth Personal Communications,
Inc., BellSouth Corporation, DukeNet Communications, Inc., and Caronet, Inc.),
Newco, SBC Communications Inc., their respective successors, assigns and
transferees, and the respective directors, officers, employees, advisors and
agents of each of them (each an "Indemnitee") and indemnify and hold harmless
each Indemnitee from and against any and all attorneys' fees and expenses
arising out of or relating to the investigation and defense of the Challenging
Litigation. Unless otherwise defined herein, capitalized terms used herein
shall have the same meanings set forth in the Settlement Agreement.
2. Upon execution and delivery of this undertaking to BellSouth Personal
Communications, Inc. and to BellSouth Corporation, to the notice addresses
provided in the Settlement Agreement, the Defending Group shall immediately and
diligently defend against the Challenging Litigation on behalf of the
Indemnitees at the Defending Group's sole cost and expense, using counsel
reasonably acceptable to the Indemnitees; provided, however, that if the
-------- -------
Defending Group shall fail or refuse to conduct such defense, or, if any one or
more members of the Defending Group are also named defendants in the Challenging
Litigation and any Indemnitee has reasonably concluded, on the basis of advice
from counsel, that it may have defenses available to it that are different from
or in addition to those available to the Defending Group, or that its interests
in the Challenging Litigation are adverse to the interests of one or more
members of the Defending Group, then such Indemnitee may defend against the
Challenging Litigation at the Defending Group's expense through counsel
reasonably acceptable to the Defending Group. In the event that any Indemnitee
is defending itself in the Challenging Litigation as provided herein, then (i)
any such member of the Defending Group and any such Indemnitee, as applicable,
may participate at its own expense in the defense of the Challenging Litigation
being defended against by the other, and (ii) such members of the Defending
Group and such Indemnitees shall cooperate with each other in the conduct of the
Challenging Litigation; provided, however, that neither the Defending Group nor
-------- -------
such defending Indemnitees will settle or otherwise dispose of the Challenging
Litigation without the approval of the other, such approval not to be
unreasonably withheld.
3. The Indemnitees will cooperate with the Defending Group, and will
cause their Affiliates, officers, directors, and employees to cooperate with the
Defending Group in the investigation and the defense of the Challenging
Litigation. Such cooperation will include, without limitation, the following:
(i) furnishing to the Defending Group such
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documents and papers and other information as the Defending Group may request,
subject to such reasonable restrictions as may be necessary to protect the
confidentiality or privilege of or with respect to any such documents, papers,
or information; (ii) making employees, consultants, and other personnel
available to consult with the Defending Group, to submit affidavits as to
factual matters within the knowledge of such persons, and to act as witnesses in
any deposition or proceeding in or connected with the Challenging Litigation;
and (iii) joining in such motions, petitions, and other pleadings in the
Challenging Litigation as the Defending Group may reasonably request.
4. Nothing in this Defense Undertaking constitutes an agreement or
undertaking on the part of the Defending Group or any member of the Defending
Group to indemnify any Indemnitee, or to hold any Indemnitee harmless from or
against, any damages or liability incurred by such Indemnitee or imposed on such
Indemnitee by, in, or in connection with the Challenging Litigation, or for the
cost of any compromise or settlement entered into by any Indemnitee of or in
respect of the Challenging Litigation, other than the cost and expense of
conducting an investigation and defense of the Challenging Litigation as
specifically provided in paragraph 1 above. Notwithstanding the foregoing, the
Defending Group may enter into any settlement or compromise of the Challenging
Litigation; provided, however, that such settlement or compromise must be
-------- -------
approved by each Indemnitee that is a defendant in the Challenging Litigation,
which approval will not be unreasonably withheld; and provided, further, that
-------- -------
the Defending Group may enter into a settlement or compromise of the Challenging
Litigation without the approval of the Indemnitees if and only if such
settlement or compromise: (i) includes a dismissal with prejudice of the
Challenging Litigation; (ii) requires no payment of monetary damages by any
Indemnitee other than monetary damages as to which the Defending Group has
assumed full liability or otherwise agreed to indemnify the Indemnitees in full
with respect to such monetary damages; and (iii) provides for no relief other
than (x) the payment of monetary damages assumed or indemnified against pursuant
to clause (ii) and (y) a release of any claims in respect of or in connection
with the Challenging Litigation against the plaintiffs or claimants in the
Challenging Litigation and their Affiliates (as defined in the Settlement
Agreement).
5. For so long as this Defense Undertaking is in effect and the Defending
Group is performing its obligation to defend hereunder, no Indemnitee may enter
into a settlement or compromise of the Challenging Litigation without the
approval of the Defending Group, which approval will not be unreasonably
withheld. Notwithstanding the foregoing, all, but not less than all, of the
Indemnitees may enter into any settlement or compromise of the Challenging
Litigation without the approval of the Defending Group if, but only if, such
settlement or compromise permits consummation of the Merger in accordance with
the terms and conditions of the Settlement Agreement and consummation of the
Merger is a condition precedent to effectiveness of such settlement or
compromise.
6. This Defense Undertaking will terminate on the earlier of (a)
Anniversary Date or (b) the date upon which the Defending Group notifies the
Indemnitees in writing that all members of the Defending Group are terminating
this Defense Undertaking.
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From and after the termination of this undertaking, the Defending Group will
have no further liability or obligation hereunder or with respect to the
Challenging Litigation. If both DukeNet and Caronet are members of the Defending
Group, then either DukeNet or Caronet may withdraw as a member of the Defending
Group, and terminate its obligations hereunder, by written notice to the
Indemnitees and the other member of the Defending Group. In the event of a
withdrawal by one member of the Defending Group, this Defense Undertaking will
remain in full force and effect with respect to the other member unless and
until such other member gives notice of termination or this undertaking expires
in accordance with the first sentence of this paragraph 6.
IN WITNESS WHEREOF, the Defending Group has executed this Defense
Undertaking and each undersigned member of the Defending Group confirms its
agreements and obligations hereunder, this __ day of _____, 2000.
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Annex 5
FULL INDEMNIFICATION AGREEMENT
------------------------------
Pursuant to the Agreement to Settle and Merger Plan dated September
11, 2000 (the "Settlement Agreement") among DukeNet Communications, Inc.
Caronet, Inc., BellSouth Personal Communications, Inc. ("BellSouth PCS"),
BellSouth Corporation ("BellSouth") and BellSouth Carolinas PCS, L.P., the
undersigned DukeNet, Caronet, or DukeNet and Caronet jointly and severally (the
"Defending Group"), for themselves, their successors, and assigns, hereby
undertake, covenant, and agree with and for the benefit of the Indemnified
Parties (as defined herein) as follows:
(a) The members of the Defending Group, jointly and severally, agree to
indemnify and hold harmless BellSouth, BellSouth PCS, Newco, SBC Communications
Inc. their respective Affiliates and their respective directors, officers,
employees, advisors and agents (collectively, the "Indemnified Parties") from
-------------------
and against any and all claims, actions, suits, proceedings, damages, losses,
liabilities, costs, fees and expenses (including without limitation reasonable
attorneys' fees, court costs and the cost of any bonds required for the appeal
of any such action, suit or proceeding) that arise out of or in connection with
any Challenging Litigation, including without limitation in investigating,
preparing for, or defending against any Challenging Litigation.
(b) Each Indemnified Party shall give notice as promptly as reasonably
practicable to the Defending Group of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify the
Defending Group shall not relieve the Defending Group from any liability
hereunder to the extent they are not materially prejudiced as a result thereof.
The Defending Group shall immediately and diligently defend against the
Challenging Litigation on behalf of the Indemnified Parties at the Defending
Group's sole cost and expense using counsel of the Defending Group's choice to
represent the Indemnified Parties in any action for which indemnification is
sought (in which case the Defending Group shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by any Indemnified
Party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the Indemnified Parties.
Notwithstanding the Defending Group's election to appoint counsel to represent
the Indemnified Parties in an action, suit or proceeding, the Indemnified
Parties shall have the right to employ separate counsel (including local
counsel), and the Defending Group shall bear the reasonable fees, costs and
expenses of such separate counsel (and local counsel) if (i) the use of counsel
chosen by the Defending Group to represent the Indemnified Parties would present
such counsel with a conflict of interest in the reasonable judgment of the
Indemnified Parties, (ii) the defendants in any such action include any of the
Indemnified Parties and any member of the Defending Group, and an Indemnified
Party shall have reasonably concluded that there may be legal defenses available
to it which are different from or additional to those available to the Defending
Group, (iii) the Defending Group shall not have employed counsel reasonably
satisfactory to the Indemnified Parties to represent the Indemnified Parties
within a reasonable time after notice of the institution of such action or (iv)
the Defending Group shall have authorized an Indemnified Party to employ
separate counsel at the expense of the Defending Group.
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(c) Neither the Defending Group nor the Indemnified Parties shall settle
any Challenging Litigation without the consent of the other, which consent shall
not be unreasonably withheld or delayed. The Defending Group and Indemnified
Parties shall cooperate with each other in the defense of any Challenging
Litigation, consistent with the terms hereof.
The indemnification obligations set for the herein are irrevocable by the
members of the Defending Group and shall be terminated only with the prior
written consent of BellSouth PCS and BellSouth, which consent may be withheld by
either of them in its sole discretion.
IN WITNESS WHEREOF, the Defending Group has executed this Indemnification
Agreement and each undersigned member of the Defending Group confirms its
agreements and obligations hereunder, this ___ day of ______, 200_.
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Annex 6
ASSIGNMENT OF EQUITY AND VOTING INTEREST
The undersigned, being an Exercising Limited Partner (as such term, and all
other capitalized terms used herein and not defined, is defined in the
Settlement Agreement, dated as of September 11, 2000, among DukeNet
Communications, Inc., Caronet, Inc., BellSouth Personal Communications, Inc.,
BellSouth Corporation and BellSouth Carolinas PCS, L.P. (the "Settlement
Agreement")) hereby assigns and transfers to the Transferee whose name is set
forth below, all of its Equity Interests and Voting Interests in the
Partnership (the "Transferred Equity Interests") pursuant to the terms and
conditions of the Settlement Agreement and in accordance with the Partnership
Agreement.
In so executing this Assignment, the Transferee hereby agrees to assume and
be bound by all of the duties and obligations of the Exercising Limited Partner
relating to the Transferred Equity Interests under the Partnership Agreement and
arising after the date hereof. In addition, the Transferee covenants and agrees
to execute any further documents and instruments as may be reasonably required
by the General Partner or the Partnership in order to comply with the transfer
requirements under Article 10, or elsewhere, in the Partnership Agreement.
IN WITNESS WHEREOF, each of parties has caused to be executed under seal by its
duly authorized corporate officer as of the date first above written.
Dated:___________________________
[NAME OF EXERCISING LIMITED PARTNER],
as Exercising Limited Partner
By: _______________________________
Title: ____________________________
[NAME OF TRANSFEREE],
as Transferee
By: _______________________________
Title: ____________________________
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Annex 7
FORM OF STAY ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Civil Action No. 3:00 CV 384 MU
DUKENET COMMUNICATIONS, INC, Individually and )
derivatively as a limited partner on behalf )
of BELLSOUTH CAROLINAS PCS, L.P., )
)
Plaintiff, )
)
vs. )
)
BELLSOUTH CORPORATION and BELLSOUTH PERSONAL )
COMMUNICATIONS, INC., )
)
Defendants, )
)
and )
)
BELLSOUTH CAROLINAS PCS, L.P., )
)
Nominal Defendant and )
Beneficially Interested Party )
)
)
)
)
)
CONSENT ORDER TO STAY PROCEEDINGS
---------------------------------
It is hereby stipulated that, with the exception of proceedings relating to
the motion of plaintiff to remand this action to the Mecklenberg County Superior
Court, all proceedings in this action are hereby stayed pending further order of
this Court.
This ______ day of _________, 2000.
______________________________________________
United States District Court Judge
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Consented to:
_____________________________________
ROBERT W. FULLER
Robinson, Bradshaw & Hinson, P.A.
101 N. Tryon Street, Suite 1900
Charlotte, NC 28246
Counsel for DukeNet Communications, Inc.
_____________________________________
MATTHEW H. PATTON
Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Counsel for BellSouth Corporation and
BellSouth Personal Communications, Inc.
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Annex 8
FORM OF STAY STIPULATION
BEFORE THE CENTER FOR PUBLIC RESOURCES
No. __________________________
DUKENET COMMUNICATIONS, INC, Individually and )
derivatively as a limited partner on behalf )
of BELLSOUTH CAROLINAS PCS, L.P., )
)
Claimant, )
)
vs. )
)
BELLSOUTH CORPORATION and BELLSOUTH PERSONAL )
COMMUNICATIONS, INC., )
)
Respondents, )
)
and )
)
BELLSOUTH CAROLINAS PCS, L.P., )
)
Nominal Respondent )
)
)
)
)
STIPULATION TO STAY PROCEEDINGS
--------------------------------
It is hereby stipulated that all proceedings and deadlines in this
arbitration be stayed until further order of the Center for Public Resources or
its duly selected arbitration panel.
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<TABLE>
<S> <C>
Consented to:
_____________________________________________ ___________________________________________
ROBERT W. FULLER MATTHEW H. PATTON
Robinson, Bradshaw & Hinson, P.A. Kilpatrick Stockton LLP
101 N. Tryon Street, Suite 1900 1100 Peachtree Street, Suite 2800
Charlotte, NC 28246 Atlanta, GA 30309-4530
Counsel for DukeNet Communications, Inc. Counsel for BellSouth Corporation and
BellSouth Personal Communications, Inc.
</TABLE>
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