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Exhibit 2(e)
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of April 23, 2001 (this "Agreement"),
is by and among (i) The Xxxxxxxxx 2000 Family Resource Trust, The Xxxxxxxxx
Charitable Trust, CAVCO of North Florida, Inc., The Arnouse Charitable Trust and
Xxxxxxx Arnouse (collectively, the "Principal Stockholders"), (ii) rStar
Corporation, a Delaware corporation (the "Corporation"), and (iii) Gilat
Satellite Networks Ltd., an Israeli corporation ("Gilat Israel") and Gilat
Satellite Networks (Holland) B.V., a Dutch corporation (and together with Gilat
Israel, the "Gilat Stockholders"). Capitalized terms used, but not otherwise
defined, herein shall have the meanings given them in the Acquisition Agreement
(as defined below). All references herein to the masculine gender shall be
deemed to include the feminine or neuter genders, where the context so requires.
WITNESSETH:
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Corporation and Gilat Israel, together with certain of its
subsidiaries and affiliates, have entered into an Acquisition Agreement (the
"Acquisition Agreement") dated April 23, 2001 providing for the consummation of
the Sale on the terms and subject to the conditions set forth therein.
WHEREAS, as a condition to, and in consideration for, the Parties'
willingness to enter into the Acquisition Agreement and to consummate the Sale
and the other transactions thereby, pursuant to Section 3.2 of the Acquisition
Agreement, the Principal Stockholders and Gilat Stockholders have agreed to
enter into this Agreement; and
WHEREAS, each of the Principal Stockholders and the Gilat
Stockholders owns the number of shares of Purchaser Stock listed opposite his
signature below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Agreements.
(a) Voting Agreement. Subject to Section 4 hereof, the
Principal Stockholders and the Gilat Stockholders irrevocably agree to take such
actions as are necessary to vote or cause to be voted the shares of Purchaser
Stock beneficially owned or controlled by each such stockholder at the
Stockholder Meeting, however such meeting is called and regardless of whether
such meeting is a special or annual meeting of the stockholders of the
Corporation, in favor of the Sale and the other transactions contemplated by the
Acquisition Agreement and against any competing proposal.
(b) No Inconsistent Arrangements. Unless specifically
required by court order or by operation of law, in which case any transferee of
any or all of the shares of Purchaser Stock held by either a Principal
Stockholder or a Gilat Stockholder shall agree to be bound hereby, each of the
Principal Stockholders and the Gilat Stockholders hereby covenants and agrees
that
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he shall not (i) transfer (which term shall include, without limitation, any
sale, gift, pledge or other disposition) or consent to any transfer of, any or
all shares of Purchaser Stock beneficially owned by him, or any interest therein
if such transfer would result in the stockholder no longer having the power to
vote or cause to be voted such shares of Purchaser Stock in favor of the Sale
and the other transactions contemplated by the Acquisition Agreement (pursuant
to Section 1(a) hereof), (ii) enter into any contract, option or other agreement
or understanding with respect to any such transfer of any or all shares of the
Purchaser Stock beneficially owned by him, or any interest therein if the
entering into or performance of any such contract, option or other agreement or
understanding would result in the stockholder no longer having the power to vote
or cause to be voted such shares of Purchaser Stock in favor of the Sale and the
other transactions contemplated by the Acquisition Agreement (pursuant to
Section 1(a) hereof), (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to any or all of the shares of Purchaser Stock
beneficially owned by him, (iv) deposit any or all the shares of Purchaser Stock
beneficially owned by him into a voting trust or enter into a voting agreement
or arrangement with respect to such shares, other than pursuant to this
Agreement, or (v) take any other action that would in any way restrict, limit or
interfere with the performance of such stockholder's obligations hereunder or
the transactions contemplated hereby or by the Acquisition Agreement.
(c) Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use his best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
hereby and by the Acquisition Agreement.
2. Representations and Warranties.
Each of the Principal Stockholders and the Gilat
Stockholders hereby represent and warrant to the Corporation and each other as
follows:
(a) Ownership of Securities. On the date
hereof, the stockholder is the "beneficial owner" (as such term is
defined in Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended) of shares of Purchaser Stock as set forth
opposite his signature hereto. The stockholder has the sole power to
vote with respect to the matters set forth in Section 1 hereof, sole
power of disposition, sole power of conversion, sole power (if any)
to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all
of the shares of Purchaser Stock beneficially owned by such
stockholder with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of
this Agreement.
(b) Power; Binding Agreement. The stockholder
has the power and authority to enter into and perform all of his
obligations under this Agreement. The execution, delivery and
performance of this Agreement by the stockholder will not violate any
agreement to which the stockholder is a party including, without
limitation, any voting agreement, proxy arrangement, pledge
agreement, stockholders agreement or
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voting trust. This Agreement has been duly and validly executed and
delivered by the stockholder and constitutes a valid and binding
agreement of the stockholder, enforceable against the stockholder in
accordance with its terms.
(c) No Conflicts. No filing with, and no
permit, authorization, consent or approval of, any Governmental
entity is required for the execution of this Agreement by the
stockholder and the consummation by the stockholder of the
transactions contemplated hereby, and none of the execution and
delivery of this Agreement by the stockholder, the consummation by
the stockholder of the transactions contemplated hereby or compliance
by the stockholder with any of the provisions hereof will (A) result
in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which the stockholder is a party or by
which the stockholder or any of his properties or assets may be bound
or (B) violate any order, writ, injunction, decree, judgment, order,
statute, arbitration award, rule or regulation applicable to the
stockholder or any of his properties or assets, other than, in each
case, any such violations or defaults which, individually or in the
aggregate, do not impair the ability of the stockholder to perform
his obligations hereunder.
3. Stop Transfer. None of the Principal Stockholders or the
Gilat Stockholders shall request that the Corporation register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such stockholder's shares of Purchaser Stock, unless such
transfer is made in compliance with this Agreement.
4. Termination. This Agreement and the covenants,
representations and warranties and agreements contained herein or granted
pursuant hereto shall terminate only upon the earlier to occur of (i) the
termination of the Acquisition Agreement in accordance with its terms or (ii)
the consummation of the transactions contemplated by the Acquisition Agreement.
5. Fiduciary Duties. Each of the Principal Stockholders and
Gilat Stockholders is signing this Agreement solely in his capacity as the
beneficial owner of the shares Purchaser Stock set forth opposite his signature
below, and nothing herein shall prohibit, prevent or preclude such stockholder
from taking or not taking any action in such stockholder's capacity as a
director of the Corporation (or as an officer of the Corporation acting solely
at the direction of the Board of Directors of the Corporation), to the extent
permitted by the Acquisition Agreement.
6. Miscellaneous.
(a) Specific Performance. Each party hereto recognizes and
agrees that if for any reason any of the provisions of this Agreement are not
performed by any other party in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused to
non-breaching parties for which money damages would not be an adequate remedy.
Accordingly, the parties hereto agree that, in addition to any other available
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remedies, the non-breaching party shall be entitled to seek an injunction
restraining any violation or threatened violation of the provisions of this
Agreement.
(b) Severability. If any provision of this Agreement,
including any phrase, sentence, clause, section or subsection, is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provisions in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable to any extent whatsoever.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
(d) Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to the subject
matter hereof.
(e) Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by facsimile (which is confirmed), or by registered or certified mail
(postage prepaid, return receipt requested):
if to the Principal Stockholders, to:
rStar Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
if to the Gilat Stockholders:
c/o Gilat Satellite Networks, Ltd.
00/X Xxxxx Xxxxxxx Xxxxxx
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Daniv Park, Kiryat Xxxx
Petah Tikva, Israel
Facsimile: 972-3-921-3321
Attn: Xxxx Xxxxxxxxxx
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Descriptive Headings; Interpretation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
(g) Assignment; Binding Agreement. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any party hereto without the prior written consent of the other parties hereto.
(h) Amendment; Modification and Waiver. This Agreement may
not be amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of the party hereto against whom such
amendment, modification or waiver is sought to be entered.
(i) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the day and year first
above written.
RSTAR CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President & CEO
THE XXXXXXXXX 2000 FAMILY
RESOURCE TRUST
SHARES: 4,474,858
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By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
THE XXXXXXXXX CHARITABLE TRUST
SHARES: 1,356,017
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By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
CAVCO OF NORTH FLORIDA, INC.
SHARES: 804,718 By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
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Voting Agreement
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THE ARNOUSE CHARITABLE TRUST
SHARES: 1,695,022 By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Trustee
SHARES: 1,882,532 /s/ Xxxxxxx Arnouse
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Xxxxxxx Xxxxxxx
XXXXX SATELLITE NETWORKS LTD.
SHARES: 548,648 By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer &
Vice President,
Finance & Administration
GILAT SATELLITE NETWORKS
(HOLLAND) B.V.
SHARES: 21,869,443 By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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Voting Agreement
