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
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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Xxxxx 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.
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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 & Chief Executive Officer
THE XXXXXXXXX 2000 FAMILY
RESOURCE TRUST
SHARES: 4,474,858 By: /s/ Xxxxx Xxxxxxx
_____________________ _________________________
Name: Xxxxx Xxxxxxx
Title: Trustee
THE XXXXXXXXX CHARITABLE TRUST
SHARES: 1,356,017 By: /s/ Xxxxx Xxxxxxx
______________________ _________________________
Name: Xxxxx Xxxxxxx
Title: Trustee
CAVCO OF NORTH FLORIDA, INC.
SHARES: 804,718 By: /s/ Xxxxxxx Xxxxxxx
______________________ _________________________
Name: Xxxxxxx Xxxxxxx
Title: President
-Signature Page-
Voting Agreement
THE ARNOUSE CHARITABLE TRUST
SHARES: 1,695,022 By: /s/ Xxxxxxxxxxx X. Xxxxxxx
___________________ ____________________________
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Trustee
SHARES: 1,882,532 /s/ Xxxxxxx Arnouse
______________________ _______________________________
Xxxxxxx Xxxxxxx
XXXXX SATELLITE NETWORKS LTD.
SHARES: 548,648 By: /s/ Xxxx Xxxxxxxxxx
______________________ _________________________
Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer &
Vice President, Finance and Administration
GILAT SATELLITE NETWORKS
(HOLLAND) B.V.
SHARES: 21,869,443 By: /s/ Xxxxxx Xxxxxx
______________________ _________________________
Name: Xxxxxx Xxxxxx
Title: Managing Director
-Signature Page-
Voting Agreement
