UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )1
GILAT SATELLITE NETWORKS LTD.
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
ORDINARY SHARES, PAR VALUE NIS .01 PER SHARE
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
M51474100
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
PHILIP V. OTERO, FOUR RESEARCH WAY, PRINCETON, NJ 08540 (609) 987-4013
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS)
DECEMBER 31, 1998
- --------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
1 The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP NO. M51474100 PAGE 2 OF 29
--------- --- ----
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GE AMERICAN COMMUNICATIONS, INC. IRS # 13-2849985
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
SC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
5,000,000
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 5,000,000
PERSON
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. M51474100 PAGE 3 OF 29
--------- --- ----
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GE SUBSIDIARY, INC. 22 IRS # 14-1682339
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
Disclaimed. See 11 below
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING Disclaimed. See 11 below
PERSON
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Beneficial ownership of all Ordinary Shares is disclaimed by GE
Subsidiary, Inc. 22
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
Not applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Disclaimed. See 11 above.
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. M51474100 PAGE 4 OF 29
--------- --- ----
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC CAPITAL CORPORATION IRS # 13-1500700
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
Disclaimed. See 11 below
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING Disclaimed. See 11 below.
PERSON
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Beneficial ownership of all Ordinary Shares is disclaimed by General
Electric Capital Corporation
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
Not applicable.
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Disclaimed. See 11 above.
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. M51474100 PAGE 5 OF 29
--------- --- ----
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC CAPITAL SERVICES, INC. IRS # 06-11095031
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
Disclaimed. See 11 below
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING Disclaimed. See 11 below
PERSON
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Beneficial ownership of all Ordinary Shares is disclaimed by General
Electric Capital Services, Inc.
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
Not applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Disclaimed. See 11 above.
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. M51474100 PAGE 6 OF 29
--------- --- ----
SCHEDULE 13D
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC COMPANY IRS # 14-0089340
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
Disclaimed. See 11 below
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING Disclaimed. See 11 below
PERSON
WITH 10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
Beneficial ownership of all Ordinary Shares is disclaimed by General
Electric Company
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
Not applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Disclaimed. See 11 above.
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. M51474100 PAGE 7 OF 29
--------- --- ----
ITEM 1. SECURITY AND ISSUER
This Schedule 13D (this "Statement") relates to the Ordinary Shares, par
value NIS .01 per share (the "Ordinary Shares"), of Gilat Satellite Networks
Ltd., a corporation organized under the laws of Israel (the "Company" or
"Gilat"), the principal executive offices of which are located at Yegia Kapayim
St., Kyriat Arye, Petah Tikva 49130, Israel.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (c). This Statement is being filed by GE American Communications,
Inc. ("GE Americom" or the "Reporting Person"), for and on behalf of itself, GE
Subsidiary, Inc. 22 ("GES 22"), General Electric Capital Corporation ("GECC"),
General Electric Capital Services, Inc. ("GECS") and General Electric Company
("GE," and together with GE Americom, GES 22, GECC and GECS, the "Filing
Persons"). The agreement among each of the Filing Persons that this Statement be
filed on behalf of each of them is attached hereto as Exhibit 1.
GE Americom is a majority-owned (directly and indirectly) subsidiary of GES
22; GES 22 is a wholly-owned subsidiary of GECC; GECC is a wholly-owned
subsidiary of GECS; and GECS is a wholly-owned subsidiary of GE.
GE Americom is a Delaware corporation. GE Americom engages in providing
satellite communications services through its own fleet of spacecraft and
maintains its principal executive offices at Four Research Way, Princeton, NJ
08540.
GES 22 is a Delaware corporation. GES 22 is a holding company for various
other GE companies and maintains its principal executive offices at Four
Research Way, Princeton, NJ 08540.
GECC is a New York corporation. GECC, together with its subsidiaries,
engages in financing services that include lending, equipment management
services and annuities and maintains its principal executive offices at 260 Long
Ridge Road, Stamford, Connecticut 06927.
GECS is a Delaware corporation. GECS owns two principal subsidiaries which,
together with their affiliates, constitute GE's principal financial services
business. GECS maintains its principal executive offices at 260 Long Ridge Road,
Stamford, Connecticut 06927.
GE is a New York corporation. GE engages in providing a wide variety of
industrial, commercial and consumer products and services. GE maintains its
principal executive offices at 3135 Easton Turnpike, Fairfield, Connecticut
06431.
For the information required herein with respect to the identity and
background of each officer and director of the Filing Persons, see Schedules I,
II, III, IV and V attached hereto and hereby incorporated herein.
The information required herein with respect to the respective executive
officers and directors of the Filing Persons is to the best knowledge of the
Filing Persons. If subsequent to the date of this Statement additional
information is received with respect to such individuals which would cause a
material change in the information contain herein, an amendment to this
Statement will be filed that will set forth such change in information.
(d) and (e). Except as set forth in Schedule VI, which is hereby
incorporated herein, during the last five years, none of the Filing Persons,
nor, to the best of their knowledge, any of the directors or executive officers,
has been (i) convicted in a criminal proceeding (excluding traffic violations
and similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or a finding of any violation with respect to such laws.
(f). All of the executive officers and directors of the Filing Persons are
U.S. citizens, except that (i) Nigel D.T. Andrews, a GECS director and executive
officer and a GECC director, is a citizen of the United Kingdom, (ii) Paolo
Fresco, a director of GE, is an Italian citizen, (iii) Claudio X. Gonzalez, a
director of GE, is a citizen of Mexico, (iv) Kaj Ahlmann, an executive officer
and a
<PAGE>
CUSIP NO. M51474100 PAGE 8 OF 29
--------- --- ----
director of GECS, is a citizen of Denmark, (v) Andrea Jung, a director of GE, is
a citizen of Canada and (vi) G.S. Malm, the senior vice president-Asia of GE, is
a citizen of Sweden.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
GE Americom acquired 5,000,000 Ordinary Shares from the Company in series
of transactions, including (1) a merger (the "Merger") in which GE Capital
Spacenet Services, Inc., a Delaware corporation ("Spacenet"), previously owned
by GE Americom, was acquired by the Company, pursuant to an Agreement and Plan
of Merger, dated as of September 25, 1998, by and among GE Americom, Spacenet,
Gilat, and Jonah Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Gilat ("Jonah") (the "Merger Agreement"); (2) the licensing of a
certain trademark to Gilat, pursuant to a Trademark Agreement, dated as of
December 31, 1998, between an affiliate of GE Americom and Gilat; (3) the sale
of the stock of GE Capital Spacenet Services - Europe GmbH, a company organized
under the laws of Germany ("GE GmbH") to the Company, pursuant to a Stock
Purchase Agreement, dated as of September 25, 1998, between an affiliate of GE
Americom and Gilat; and, (4) the sale of the stock of Spacenet Services B.V., a
company organized under the laws of the Netherlands ("GE BV") to the Company,
pursuant to a Stock Purchase Agreement, dated as of September 25, 1998, between
an affiliate of GE Americom and Gilat.
ITEM 4. PURPOSE OF TRANSACTION
The Reporting Person has acquired Ordinary Shares in connection with the
sale of Spacenet, GE GmbH and GE BV to the Company in the Merger, the stock
purchases listed in Item 3 above and other related transactions. Depending upon
market conditions and other factors, the current intention of the Reporting
Person is to maintain its ownership level at its current level. The Reporting
Person, however, reserves the right to, and may in the future choose to, change
its purpose with respect to its investment and take such actions as it deems
appropriate in light of the circumstances including, without limitation, to
dispose of all or a portion of the Ordinary Shares which it now owns or may
hereafter acquire.
The Reporting Person is entitled to receive additional Ordinary Shares from
the Company, under a Non-Transferable Contingent Stock Right (the "Contingent
Right"), dated as of December 31, 1998, between GE Americom, Gilat and certain
other parties, including particularly as a result of the book value of Spacenet
(as adjusted pursuant to the Merger Agreement) at closing, certain post-closing
sales of certain Spacenet products and/or services or under a specified contract
between Spacenet and a customer and similar arrangements. The number of
additional Ordinary Shares that the Reporting Person is entitled to receive as a
result of these arrangements presently cannot be estimated.
Under a Shareholders' Agreement by and among Yoel Gat, Amiram Levinberg,
Joshua Levinberg, Shlomo Tirosh and Gideon Kaplan (collectively, the "Founders
Group"), DIC Technology Holdings Ltd. and PEC Israel Economic Corporation
(collectively, the "IDB Group") and GE Americom, on behalf of itself and its
affiliates (the "GE Parties"), dated as of December 31, 1998 (the Founders
Group, the IDB Group and the GE Parties being referred to collectively as the
"Major Shareholders"), the GE Parties have the right to designate two (2)
individuals as nominees for directors of Gilat. The Board of Directors of Gilat
is currently comprised of seven (7) members. The GE Parties have not yet
exercised this right. See Item 6 below for more information about the
Shareholders' Agreement.
Under the Shareholders' Agreement, the Reporting Person is restricted in
its ability to purchase additional Ordinary Shares of Gilat and in its ability
to dispose of Ordinary Shares for the next three (3) years as further described
in Item 6 below.
Except as otherwise set forth herein, none of the Filing Persons has any
current plans or proposals which relate to or would result in the matters set
forth in items (a) - (j) of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a). As of the date of this report, the Reporting Person beneficially owns
an aggregate of 5,000,000 Ordinary Shares of the Company which represents
approximately 31% of the 16,132,224 Ordinary Shares of the Company outstanding
as of December 31, 1998 (based on 11,132,224 shares outstanding on 11/1/98 as
described on the proxy statement of the Company dated November 9, 1998). GES 22,
GECC, GECS and GE disclaim beneficial ownership in any Ordinary Shares.
<PAGE>
CUSIP NO. M51474100 PAGE 9 OF 29
--------- --- ----
(b). GE Americom has sole power to vote and dispose of the Ordinary Shares.
None of the Filing Persons, nor, to the best of their knowledge, any of their
executive officers and directors, presently has the power to vote or to direct
the vote or to dispose or direct the disposition of any of the securities which
they may be deemed to beneficially own.
(c). None of the Filing Persons, nor, to the best of their knowledge, any
of their executive officers or directors, has effected any transactions in the
securities of the Company in the past 60 days.
(d). No person is known to have the power to direct the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the sale
of, securities held by GE Americom except for GE Americom.
(e). Not applicable.
Neither the filing of the Statement or any amendment thereto, nor anything
contained herein is intended as, or should be construed as, an admission that
any Filing Person is the "beneficial owner" of any Ordinary Shares which any
other Filing Person is deemed to beneficially own.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
Under the Shareholders' Agreement, the Major Shareholders (including the
Reporting Person) have agreed to vote all of their Ordinary Shares in accordance
with the recommendation of the Board of Directors of Gilat (except that no Major
Shareholder shall be obligated by the Shareholders' Agreement to vote in
accordance with the recommendations of the Board of Directors of Gilat to the
extent that (i) such vote relates to a merger (which merger results in a Change
of Control (as defined in the Shareholders' Agreement) or sale of all or
substantially all of the Company or a reorganization or restructuring of the
Company changing the rights of shareholders in a significant and adverse manner
or a transaction with substantially similar results or (ii) such Major
Shareholder in reasonable good faith determines that voting in accordance with
such recommendation is directly and materially adverse to the interests of such
Major Shareholder, solely in its capacity as a shareholder(s) of the Company
(provided, that notwithstanding the preceding proviso, all of the Major
Shareholders shall at all times be required to comply with all of the other
terms of the Shareholders' Agreement)).
In addition, for a period of three (3) years from the date of the
Shareholders' Agreement, the Major Shareholders will vote their Ordinary Shares,
and will direct their representatives on the Board of Directors of Gilat to
vote, in favor of the retention in their respective offices of all senior
officers of Gilat holding such offices as of the date of the Shareholders'
Agreement.
Under the Shareholders' Agreement, the GE Parties have agreed to certain
"stand-still" provisions to be in effect during the term of such agreement,
including restrictions on:
(i) the acquisition (other than pursuant to the Merger Agreement and
related agreements) of any of Gilat's assets, businesses or properties or any
Ordinary Shares, or any securities convertible into, exchangeable for, or
exercisable for Ordinary Shares, of Gilat if such acquisition of Ordinary
Shares, securities convertible into, exchangeable for, or exercisable for
Ordinary Shares would result in the GE Parties being the beneficial owners of
more than thirty-three percent (33%) of the Ordinary Shares of Gilat then
outstanding; provided, that in the event of a bona fide tender offer for at
least 50% of the outstanding Ordinary Shares of Gilat by a party not affiliated
with any of the Major Shareholders at a price in excess of the Market Price (as
defined in the Shareholders' Agreement) of such Ordinary Shares immediately
prior to the announcement of such tender offer, the GE Parties shall be free,
during the pendency of such bona fide tender offer, to commence a tender offer
for all of the outstanding Ordinary Shares or to acquire Ordinary Shares in the
open market or otherwise notwithstanding this provision (i); and,
(ii) the ability to take certain corporate actions, including, (a) solicit,
initiate or participate in any "solicitation" of "proxies" or become a
participant in any "election contest" (as such terms are defined in Regulation
14A under the Securities Exchange Act of 1934), (b) call, or in any way
participate in a call for, any special or extraordinary meeting of shareholders
of Gilat, (c) initiate or propose any shareholder proposal or participate in the
making of, or solicit shareholders for the approval of, one or more shareholder
proposals relating to the Ordinary Shares, (d) subject any of its Ordinary
Shares to a voting trust or voting arrangement, (e) form or join or in any way
participate in any group of Major Shareholders with respect to the Ordinary
Shares otherwise than as a result of the Shareholders' Agreement, (f) solicit or
propose to effect or negotiate any form of business combination, restructuring,
recapitalization or other extraordinary transaction involving any change of
control of the Company, (g) disclose or act upon any intention, plan or proposal
with respect to the Ordinary Shares or the Company which is inconsistent with
the terms of the Shareholders' Agreement, (h) seek election to or seek to place
a representative or nominee on the
<PAGE>
CUSIP NO. M51474100 PAGE 10 OF 29
--------- ---- ----
Board of Directors of the Company or seek the removal of any member of the Board
of Directors of the Company, in each case otherwise than in accordance with the
terms of the Shareholders' Agreement, and (i) assist, advise, encourage or act
in concert with any person with respect to, or seek to do, any of the foregoing.
Under the Shareholders' Agreement, the GE Parties have agreed to obtain the
prior written consent of each of the holders of a majority of Ordinary Shares
then held by the Founders Group and the holders of a majority of the Ordinary
Shares then held by the IDB Group prior to transferring any Ordinary Shares on
or prior to a date three (3) years from the date of the Shareholders' Agreement,
if as a result of such transfer, the GE Parties collectively own less than
fifteen percent 15% of the then outstanding Ordinary Shares of Gilat; provided,
however, that these restrictions shall cease to apply (1) on any Determination
Date (as defined in the Shareholders' Agreement) with respect to the
Unrestricted Percentage (as defined in the Shareholders' Agreement) of the
Ordinary Shares held in the aggregate by the GE Parties on the date of the
Shareholders' Agreement, (2) at any time that the GE Parties hold less than 5%
of the then outstanding Ordinary Shares of the Company, (3) if at any date the
Market Price of the Ordinary Shares is below $7.00 per share (adjusted to give
effect to any change in the capitalization of the Company, including as a result
of any stock split, stock dividend or stock combination), (4) under certain
circumstances described in a Registration Rights Agreement, and (5)(a) in
respect of a Change of Control Transaction (as defined in the Shareholders'
Agreement) that has been approved by a majority of the directors of the Company
with no material interest in the matter being considered (other than in their
capacities as shareholders of the Company), or if at such time there are no such
directors with no material interest in the matter being considered, a majority
of the Board of Directors of the Company, unless the holders of a majority of
the Ordinary Shares then held by the Founders Group and the holders of a
majority of the Ordinary Shares then held by the IDB Group, respectively, each
certify in writing in response to a reasonable request by GE that they intend,
in connection with such Change of Control Transaction, to maintain the ownership
of all or substantially all of the Ordinary Shares owned by them immediately
prior to the commencement of such Change of Control Transaction and, solely in
their capacities as shareholders of the Company, to oppose (to the extent such
opposition is in compliance with the terms of the Shareholders' Agreement and
applicable law) such Change of Control Transaction or (b) following any Change
of Control Transaction, provided that no GE Parties participated in any manner
in the relevant Change of Control Transaction.
Under the Shareholders' Agreement, the GE Parties have also agreed to give
advance notice to the Major Shareholders of any transfer of Ordinary Shares of
Gilat held by any of the GE Parties.
The Ordinary Shares beneficially owned by the Reporting Person were issued
in a private placement and accordingly are subject to restrictions on transfer
under applicable securities laws. The Reporting Person has been granted certain
registration rights under a registration rights agreement, dated as of December
31, 1998, between GE Americom, Gilat and certain other parties.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Schedule Description
- -------- -----------
I. Directors and executive officers of GE Americom.
II. Directors and executive officers of GES 22.
III. Directors and executive officers of GECC.
IV. Directors and executive officers of GECS.
V. Directors and executive officers of GE.
VI. Litigation
Exhibit Description
- ------- -----------
1. Joint Filing Agreement.
2. Shareholders' Agreement dated as of December 31, 1998, by and
among the Founders Group, the IDB Group and the GE Parties.
3. Non-Transferable Contingent Stock Right dated as of December 31,
1998, by and among GE Americom, Gilat and Jonah.
4. Registration Rights Agreement dated as of December 31, 1998, by
and among GE Americom, Gilat and certain other parties.
<PAGE>
CUSIP NO. M51474100 PAGE 11 OF 29
--------- ---- ----
SIGNATURES
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: January 11, 1999 GE AMERICAN COMMUNICATIONS, INC.
/s/ Philip V. Otero
-----------------------------------
By: Philip V. Otero
Title: Senior Vice President,
Legal/Regulatory Operations
Date: January 11, 1999 GE SUBSIDIARY, INC. 22
/s/ Philip V. Otero
-----------------------------------
By: Philip V. Otero
Title: Senior Vice President, Secretary
Date: January 11, 1999 GENERAL ELECTRIC CAPITAL CORPORATION
/s/ Robert E. Healing
-----------------------------------
By: Robert E. Healing
Title: Attorney-in-Fact
Date: January 11, 1999 GENERAL ELECTRIC CAPITAL SERVICES, INC.
/s/ Robert E. Healing
-----------------------------------
By: Robert E. Healing
Title: Attorney-in-Fact
Date: January 11, 1999 GENERAL ELECTRIC COMPANY
/s/ Robert E. Healing
-----------------------------------
By: Robert E. Healing
Title: Corporate Counsel
<PAGE>
CUSIP NO. M51474100 PAGE 12 OF 29
--------- ---- ----
SCHEDULE AND EXHIBIT INDEX
Schedule Description
- -------- -----------
I. Directors and executive officers of GE Americom.
II. Directors and executive officers of GES 22.
III. Directors and executive officers of GECC.
IV. Directors and executive officers of GECS.
V. Directors and executive officers of GE.
VI. Litigation
Exhibit Description
- ------- -----------
1. Joint Filing Agreement.
2. Shareholders' Agreement dated as of December 31, 1998, by and
among the Founders Group, the IDB Group and the GE Parties.
3. Non-Transferable Contingent Stock Right dated as of December 31,
1998, by and among GE Americom, Gilat and Jonah.
4. Registration Rights Agreement dated as of December 31, 1998, by
and among GE Americom, Gilat and certain other parties.
<PAGE>
CUSIP NO. M51474100 PAGE 13 OF 29
--------- ---- ----
Schedule I
GE AMERICAN COMMUNICATIONS, INC.
DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
DIRECTORS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
John F. Connelly GE Americom Chairman, Chief Executive
Four Research Way Officer and President,
Princeton, NJ 08540 GE Americom
John C. DiMarco, Jr. GE Americom Senior Vice President,
Four Research Way Enterprise Systems
Princeton, NJ 08540 GE Americom
Phillip V. Otero GE Americom Senior Vice President,
Four Research Way Legal/Regulatory Operations
Princeton, NJ 08540 GE Americom
<CAPTION>
EXECUTIVE OFFICERS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
John F. Connelly GE Americom Chairman, Chief Executive
Four Research Way Officer and President,
Princeton, NJ 08540 GE Americom
John C. DiMarco, Jr. GE Americom Senior Vice President,
Four Research Way Enterprise Systems
Princeton, NJ 08540 GE Americom
Phillip V. Otero GE Americom Senior Vice President,
Four Research Way Legal/Regulatory Operations
Princeton, NJ 08540 GE Americom
Gregg A. Holst GE Americom Senior Vice President,
Four Research Way Finance Operations
Princeton, NJ 08540 GE Americom
Walter H. Braun GE Americom Senior Vice President,
Four Research Way General Manager, Engineering
Princeton, NJ 08540 and Operations
GE Americom
Andreas M. Georghiou GE Americom Senior Vice President,
Four Research Way Global Satellite Services
Princeton, NJ 08540 GE Americom
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 14 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
Dennis F. Helper GE Americom Senior Vice President,
Four Research Way Human Resources Operations
Princeton, NJ 08540 GE Americom
Mary T. Stewart GECC Senior Vice President, Financing
260 Long Ridge Road and Business Development
Stamford, CT 06927 GE Americom
Emmett B. Hume GE Americom Senior Vice President,
Four Research Way Marketing
Princeton, NJ 08540 GE Americom
Anders Johnson GE Americom Senior Vice President,
Four Research Way Risk Management
Princeton, NJ 08540 GE Americom
Robert Phelan GE Americom Senior Vice President,
Four Research Way Quality Programs
Princeton, NJ 08540 GE Americom
John Repko GE Americom Senior Vice President,
Four Research Way Chief Information Officer
Princeton, NJ 08540 GE Americom
Richard A. Langhans GE Americom Vice President, Technology
Four Research Way GE Americom
Princeton, NJ 08540
George Monaster GE Americom Vice President,
Four Research Way Marketing Communications
Princeton, NJ 08540 GE Americom
John A. Nelsen GE Americom Vice President,
Four Research Way Market Development
Princeton, NJ 08540 GE Americom
Daniel J. Harel GE Americom Vice President, Space
Four Research Way Systems and Operations
Princeton, NJ 08540 GE Americom
Michael J. Noon GE Americom Vice President, Terrestrial
Four Research Way Systems and Operations
Princeton, NJ 08540 GE Americom
Carl Capista GE Americom Vice President, Satellite
Four Research Way Services-North America
Princeton, NJ 08540 GE Americom
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 15 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
Daniel Dzamba, Jr. GE Americom Vice President, Marketing-
Four Research Way Data Products
Princeton, NJ 08540 GE Americom
Tim Angst GE Americom Vice President, Broadband
Four Research Way and Data Services
Princeton, NJ 08540 GE Americom
Stuart Jacob GE Americom Vice President, Marketing-
Four Research Way Media Services
Princeton, NJ 08540 GE Americom
Jeffrey L. Hyde GECS Senior Tax Counsel,
777 Long Ridge Road GECS
Stamford, CT 06927
Joseph T. Cassidy GECS Director-Federal Compliance,
777 Long Ridge Road GECS
Stamford, CT 06927
Hanaa Nasr GE Americom Tax Accountant,
Four Research Way GE Americom
Princeton, NJ 08540
Kenneth E. Kempson GECS Senior Tax Counsel-
777 Long Ridge Road Examinations,
Stamford, CT 06927 GECS
Stuart G. Wessler GE Americom Tax Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
John Amato GECS Tax Counsel-State Tax,
777 Long Ridge Road GECS
Stamford, CT 06927
Patricia Lecouras GE Capital Commercial Real Estate, Inc. Quality Black Belt,
260 Long Ridge Road GE Capital Commercial Real Estate, Inc.
Stamford, CT 06927
Gary J. Schulman GECS State Tax Planner,
777 Long Ridge Road GECS
Stamford, CT 06927
Mark R. O'Leary GE Americom Associate General Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 16 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
Mara Yoelson Trenchard GE Americom Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
Walker Allen GE Americom Associate General Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 17 OF 29
--------- ---- ----
Schedule II
GENERAL ELECTRIC SUBSIDIARY, INC. 22
DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
DIRECTORS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
John F. Connelly GE Americom Chairman, Chief Executive
Four Research Way Officer and President,
Princeton, NJ 08540 GE Americom
John C. DiMarco, Jr. GE Americom Senior Vice President,
Four Research Way Enterprise Systems
Princeton, NJ 08540 GE Americom
Phillip V. Otero GE Americom Senior Vice President,
Four Research Way Legal/Regulatory Operations
Princeton, NJ 08540 GE Americom
<CAPTION>
EXECUTIVE OFFICERS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
John F. Connelly GE Americom Chairman, Chief Executive
Four Research Way Officer and President,
Princeton, NJ 08540 GE Americom
Gregg A. Holst GE Americom Senior Vice President,
Four Research Way Finance Operations
Princeton, NJ 08540 GE Americom
Phillip V. Otero GE Americom Senior Vice President,
Four Research Way Legal/Regulatory Operations
Princeton, NJ 08540 GE Americom
Victor F. Guaglianone GE Americom Vice President and Associate
Four Research Way General Counsel, GECS
Princeton, NJ 08540
Dave Tucker GECS Vice President, Manager-
777 Long Ridge Road GE Capital Corporate Audit,
Stamford, CT 06927 GECS
Jeffrey L. Hyde GECS Senior Tax Counsel,
777 Long Ridge Road GECS
Stamford, CT 06927
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 18 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
Joseph T. Cassidy GECS Director-Federal Compliance,
777 Long Ridge Road GECS
Stamford, CT 06927
Kenneth E. Kempson GECS Senior Tax Counsel-
777 Long Ridge Road Examinations,
Stamford, CT 06927 GECS
Stuart G. Wessler GE Americom Tax Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
John Amato GECS Tax Counsel-State Tax,
777 Long Ridge Road GECS
Stamford, CT 06927
Patricia Lecouras GE Capital Commercial Real Estate, Inc. Quality Black Belt,
260 Long Ridge Road GE Capital Commercial Real Estate, Inc.
Stamford, CT 06927
Gary J. Schulman GECS State Tax Planner,
777 Long Ridge Road GECS
Stamford, CT 06927
Mark R. O'Leary GE Americom Assistant General Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
Mara Yoelson Trenchard GE Americom Counsel,
Four Research Way GE Americom
Princeton, NJ 08540
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 19 OF 29
--------- ---- ----
Schedule III
GENERAL ELECTRIC CAPITAL CORPORATION
DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
DIRECTORS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
N.D.T. Andrews GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
N.E. Barton GECC Senior Vice President.
260 Long Ridge Road General Counsel and
Stamford, CT 06927 Secretary, GECC
J.R. Bunt GE Vice President and
3135 Easton Turnpike Treasurer, GE
Fairfield, CT 06431
David M. Cote GE Appliances President and Chief Executive
Appliance Park Officer GE Appliances
Louisville, KY 40225
D.D. Dammerman GE Vice President and
3135 Easton Turnpike Executive Officer
Fairfield, CT 06431
B.W. Heineman, Jr. GE Senior Vice President,
3135 Easton Turnpike General Counsel and
Fairfield, CT 06431 Secretary, GE
Jeffrey R. Immelt GE Medical Systems President and Chief Executive
3000 N. Grandview Blvd. Officer
Waukesha, WI 53188
W. James McNerney, Jr. GE Aircraft Engines President and Chief Executive
1 Neumann Way Officer
Cincinnati, OH 45215
John H. Myers GE Investment Corporation Chairman and President
3003 Summer Street
Stamford, CT 06904
R.L. Nardelli GE President and Chief
One River Road Executive Officer
Schenectady, NY 12345 GE Power Systems
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 20 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
D.J. Nayden GECC President and Chief
260 Long Ridge Road Operating Officer, GECC
Stamford, CT 06927
M.A. Neal GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
J.A. Parke GECC Senior Vice President,
260 Long Ridge Road Finance, GECC
Stamford, CT 06927
J.M. Samuels GE Vice President and
3135 Easton Turnpike Senior Counsel,
Fairfield, CT 06431 Corporate Taxes, GE
E.D. Stewart GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
J.F. Welch, Jr. GE Chairman and Chief
3135 Easton Turnpike Executive Officer, GE
Fairfield, CT 06431
G.C. Wendt GECC Chairman and Chief
260 Long Ridge Road Executive Officer, GECC
Stamford, CT 06927
<CAPTION>
EXECUTIVE OFFICERS:
<S> <C> <C>
G.C. Wendt GECC Chairman and Chief
260 Long Ridge Road Executive Officer, GECC
Stamford, CT 06927
D.J. Nayden GECC President and Chief
260 Long Ridge Road Operating Officer, GECC
Stamford, CT 06927
N.D.T. Andrews GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
M.A. Neal GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
E.D. Stewart GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 21 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
N.E. Barton GECC Senior Vice President,
260 Long Ridge Road General Counsel and
Stamford, CT 06927 Secretary, GECC
J.A. Colica GECC Senior Vice President,
260 Long Ridge Road and Manager Global Risk
Stamford, CT 06927 Management
M.D. Fraizer GECC Senior Vice President,
292 Long Ridge Road Insurance/Investment
Stamford, CT 06927 Products, GECC
R.L. Lewis GECC Senior Vice President,
1600 Sumner Street and General Manager
6th Floor Structured Finance
Stamford, CT 06905 Group, GECC
J.A. Parke GECC Senior Vice President,
260 Long Ridge Road Finance, GECC
Stamford, CT 06927
L.J. Toole GECC Senior Vice President,
260 Long Ridge Road Human Resources,
Stamford, CT 06927 GECC
J.S. Werner GECC Senior Vice President,
201 High Ridge Road Corporate Treasury and
Stamford, CT 06927 Global Funding
Operation, GECC
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 22 OF 29
--------- ---- ----
Schedule IV
GENERAL ELECTRIC CAPITAL SERVICES, INC.
DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
DIRECTORS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
G.C. Wendt GECS Chairman, President
260 Long Ridge Road and Chief Executive
Stamford, CT 06927 Officer, GECS
K. Ahlmann Employers Reinsurance Corp. Executive Vice
5200 Metcalf President, GECS.
Overland Park, KS 66202 President and Chief
Operating Officer,
Employers Reinsurance
Corp.
N.D.T. Andrews GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
J.R. Bunt GE Vice President and
3135 Easton Turnpike Treasurer, GE
Fairfield, CT 06431
David M. Cote GE Appliances President and Chief Executive
Appliance Park Officer, GE Appliances
Louisville, KY 40225
D.D. Dammerman GE Vice Chairman and
3135 Easton Turnpike Executive Officer, GE
Fairfield, CT 06431
B.W. Heineman, Jr. GE Senior Vice President,
3135 Easton Turnpike General Counsel and
Fairfield, CT 06431 Secretary, GE
Jeffrey R. Immelt GE Medical Systems President and Chief Executive
3000 N. Grandview Blvd. Officer
Waukesha, WI 53188
W. James McNerney, Jr. GE Aircraft Engines President and Chief Executive
1 Neumann Way Officer
Cincinnati, OH 45215
John H. Myers GE Investment Corporation Chairman and President
3003 Summer Street
Stamford, CT 06904
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 23 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
R.L. Nardelli GE President and Chief Executive
One River Road Officer GE Power Systems
Schenectady, NY 12345
D.J. Nayden GECC President and Chief
260 Long Ridge Road Operating Officer,
Stamford, CT 06927 GECC
M.A. Neal GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
J.M. Samuels GE Vice President and
3135 Easton Turnpike Senior Counsel,
Fairfield, CT 06431 Corporate Taxes, GE
E.D. Stewart GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
J.F. Welch, Jr. GE Chairman and Chief
3135 Easton Turnpike Executive Officer, GE
Fairfield, CT 06431
<CAPTION>
EXECUTIVE OFFICERS:
<S> <C> <C>
Joan C. Amble GECC Vice President and Comptroller
260 Long Ridge Road
Stamford, CT 06927
G.C. Wendt GECC Chairman and Chief
260 Long Ridge Road Executive Officer, GECC
Stamford, CT 06927
Barbara E. Daniele GECC Vice President and Senior
260 Long Ridge Road Litigation Counsel
Stamford, CT 06927
Richard D'Avino GECC Vice President and Senior
777 Long Ridge Road Counsel, Taxes
Stamford, CT 06927
G.C. Wendt GECS Chairman, President
260 Long Ridge Road and Chief Executive
Stamford, CT 06927 Officer, GECS
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 24 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
K. Ahlmann Employers Reinsurance Corp. Executive Vice
5200 Metcalf President, GECS.
Overland Park, KS 66202 President and Chief
Operating Officer, ERC
N.D.T. Andrews GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
D.J. Nayden GECC President and Chief
260 Long Ridge Road Operating Officer, GECC
Stamford, CT 06927
M.A. Neal GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
E.D. Stewart GECC Executive Vice
260 Long Ridge Road President, GECC
Stamford, CT 06927
N.E. Barton GECC Senior Vice President,
260 Long Ridge Road General Counsel and
Stamford, CT 06927 Secretary, GECC
J.A. Parke GECC Senior Vice President,
260 Long Ridge Road Finance, GECC
Stamford, CT 06927
L.J. Toole GECC Senior Vice President,
260 Long Ridge Road Human Resources,
Stamford, CT 06927 GECC
J.S. Werner GECC Senior Vice President,
201 High Ridge Road Corporate Treasury and
Stamford, CT 06927 Global Funding
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 25 OF 29
--------- ---- ----
Schedule V
GENERAL ELECTRIC COMPANY
DIRECTORS AND EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
DIRECTORS:
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
J.J. Cash, Jr. Harvard Business School Professor of Business
Baker Library 187 Administration, Graduate
Soldiers Field School of Business
Boston, MA 02163 Administration, Harvard
University
S.S. Cathcart 222 Wisconsin Avenue Director and Retired
Suite 103 Chairman of the Board,
Lake Forest, IL 60045 Illinois Tool Works
D.D. Dammerman GE Vice Chairman of the Board and
3135 Easton Turnpike Executive Officer, GE
Fairfield, CT 06431
P. Fresco Fiat SpA Vice Chairman of the
Via Nizza 250 Board and Executive
10126, Torino, Italy Officer, GE
C.X. Gonzalez Kimberly-Clark de Chairman of the Board
Mexico, S.A. de C.V. and Chief Executive
Jose Luis Lagrange 103, Officer, Kimberly-
Tercer Piso Clark de Mexico, S.A. de C.V.
Colonia Los Morales
Mexico, D.F. 11510
Andrea Jung Avon Products Former member of the
1345 Avenue of the the Board of Directors
Americas Federated Department
NY, NY 10001 Stores
G.G. Michelson Federated Department Former Member of the Board of
Stores Directors -- Federated
151 West 34th Street Department Stores
New York, NY 10001
E.F. Murphy GE Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer, GE
S. Nunn King & Spalding Partner, King & Spalding
191 Peachtree Street, N.E.
Atlanta, GA 30303
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 26 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
J. D. Opie GE Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer, GE
R. S. Penske Penske Corporation Chairman of the Board
13400 Outer Drive, West and President
Detroit, MI 48239-4001 Penske Corporation
F.H.T. Rhodes Cornell University President Emeritus,
3104 Snee Building Cornell University
Ithaca, NY 14853
A.C. Sigler Champion International Former Chairman of the Board,
Corporation Former Chief Executive
1 Champion Plaza Officer and Director
Stamford, CT 06921 Champion International
Corporation
D.A. Warner III J.P. Morgan & Co., Inc. Chairman of the Board and
and Morgan Guaranty Chief Executive Officer
Trust Co. J.P. Morgan & Co.
60 Wall Street & Co., Incorporated
New York, NY 10260 and Morgan Guaranty
Trust Company
J.F. Welch, Jr. GE Chairman of the Board
3135 Easton Turnpike and Chief Executive
Fairfield, CT 06431 Officer, GE
<CAPTION>
EXECUTIVE OFFICERS:
<S> <C> <C>
J.F. Welch, Jr. GE Chairman of the Board
3135 Easton Turnpike and Chief Executive
Fairfield, CT 06431 Officer, GE
P.D. Ameen GE Vice President and
3135 Easton Turnpike Comptroller, GE
Fairfield, CT 06431
J.R. Bunt GE Vice President and
3135 Easton Turnpike Treasurer, GE
Fairfield, CT 06431
D. L. Calhoun GE Vice President and
Nela Park Treasurer
Cleveland, OH 44122
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 27 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
W. J. Conaty GE Senior Vice President
3135 Easton Turnpike Human Resources, GE
Fairfield, CT 06431
D.M. Cote GE Senior Vice President -- GE
3135 Easton Turnpike Appliances
Fairfield, CT 06431
D.D. Dammerman GE Vice Chairman of the Board and
3135 Easton Turnpike Executive Officer, GE
Fairfield, CT 06431
L.S. Edelheit GE Senior Vice President
P.O. Box 8 -- Corporate Research
Schenectady, NY 12301 and Development, GE
B.W. Heineman, Jr. GE Senior Vice President,
3135 Easton Turnpike General Counsel
Fairfield, CT 06431 and Secretary, GE
J.R. Immelt GE Senior Vice President
P.O. 414 Medical Systems
Milwaukee, WI 53201
G.S. Malm GE Senior Vice President -
3135 Easton Turnpike Asia
Fairfield, CT 06431
W.J. McNerney GE Senior Vice President,
1 Neumann Way GE Aircraft Engines
Cincinnati, OH 05215
E.F. Murphy GE Vice Chairman of the Board
3135 Easton Turnpike and Executive Officer
Fairfield, CT 06431
R.L. Nardelli GE Senior Vice President,
One River Road GE Power Systems
Schenectady, NY 12345
R.W. Nelson GE Vice President
3135 Easton Turnpike Corporate Financial
Fairfield, CT 06431 Planning and Analysis, GE
J. D. Opie GE Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer, GE
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 28 OF 29
--------- ---- ----
<TABLE>
<CAPTION>
PRESENT PRESENT
BUSINESS PRINCIPAL
NAME ADDRESS OCCUPATION
- ---- ------- ----------
<S> <C> <C>
G.M. Reiner GE Senior Vice President
3135 Easton Turnpike Chief Information
Fairfield, CT 06431 Officer, GE
J.G. Rice GE Vice President, GE
2901 East Lake Road Transportation Systems
Erie, PA 16531
G.L. Rogers GE Senior Vice President
1 Plastics Avenue GE Plastics, GE
Pittsfield, MA 01201
K.S. Sherin GE Senior Vice President and
3135 Easton Turnpike Chief Financial
Fairfield, CT 06431 Officer, GE
L.G. Trotter GE Senior Vice President, GE
41 Woodford Avenue Industrial Systems
Plainville, CT 06062
</TABLE>
<PAGE>
CUSIP NO. M51474100 PAGE 29 OF 29
--------- ---- ----
Schedule VI
1. Her Majesty's Inspectorate of Pollution v. IGE Medical Systems Limited (St.
Albans Magistrates Court, St. Albans, Hertsfordshire, England, Case No.
04/00320181)
In April, 1994, General Electric Medical Systems' U.K. subsidiary, IGE
Medical Systems Limited ("IGEMS") discovered the loss of a radioactive barium
source at the Radlett, England facility. The lost source, used to calibrate
nuclear camera detectors, emits a very low level of radiation. IGEMS immediately
reported the loss as required by the U.K. Radioactive Substances Act. An ensuing
investigation, conducted in cooperation with government authorities, failed to
locate the source. On July 21, 1994, Her Majesty's Inspectorate of Pollution
("HMIP") charged IGEMS with violating the Radioactive Substances Act by failing
to comply with a condition of registration. The Act provides that a registrant
like IGEMS, which "does not comply with a limitation or condition subject to
which (it) is so registered ... shall be guilty of (a criminal) offense."
Condition 7 of IGEMS' registration states that it "shall so far as is reasonably
practicable prevent ... loss of any registered source."
At the beginning of trial on February 24, 1995, IGEMS entered a guilty plea
and agreed to pay of fine of (pound) 5,000 and assessed costs of (pound) 5,754.
The prosecutors presentation focused primarily on the 1991 change in internal
IGEMS procedures and, in particular, the source logging procedure. The
prosecutor complimented IGEMS' investigation and efforts to locate the source
and advised the court that IGEMS had no previous violations of the Radioactive
Substances Act. He also told the court that the Radlett plant had been
highlighted as an exemplary facility to HMIP inspectors as part of their
training. In mitigation, IGEMS emphasized the significant infrastructure and
expense undertaken by IGEMS to provide security for radiation sources and the
significant effort and expense incurred in attempting to locate the missing
source.
EXHIBIT 1
JOINT FILING AGREEMENT
Pursuant to Rule 13d-1(f) promulgated under the Securities Exchange Act of
1934, as amended, the undersigned each hereby agrees to the joint filing, on
behalf of each of the undersigned, of this Schedule 13D dated January 11, 1999,
and all subsequent amendments thereto.
This Joint Filing Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Dated: January 11, 1999
GE AMERICAN COMMUNICATIONS, INC.
By: /s/ Philip V. Otero
------------------------------------
Name: Philip V. Otero
Title: Senior Vice President, Legal/
Regulatory Operations
GE SUBSIDIARY, INC. 22
By: /s/ Philip V. Otero
------------------------------------
Name: Philip V. Otero
Title: Senior Vice President, Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Robert E. Healing
------------------------------------
Name: Robert E. Healing
Title: Attorney-in-Fact
GENERAL ELECTRIC CAPITAL SERVICES, INC.
By: /s/ Robert E. Healing
------------------------------------
Name: Robert E. Healing
Title: Attorney-in-Fact
GENERAL ELECTRIC COMPANY
By: /s/ Robert E. Healing
------------------------------------
Name: Robert E. Healing
Title: Corporate Counsel
EXHIBIT 2
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT ("Agreement"), dated as of December 31, 1998, by
and among Yoel Gat, Amiram Levinberg, Joshua Levinberg, Shlomo Tirosh and Gideon
Kaplan (collectively, the "Founders Group"), DIC Technology Holdings Ltd. and
PEC Israel Economic Corporation (collectively, the "IDB Group"), and General
Electric Company, GE American Communications, Inc. ("GE Americom"), General
Electric Finance Holding GMBH and General Electric Plastics B.V. (collectively,
"GE"). Each of Yoel Gat, Amiram Levinberg, Joshua Levinberg, Shlomo Tirosh and
Gideon Kaplan is individually referred to herein as a "Founder" and collectively
as the "Founders," each of the Founders Group, the IDB Group and GE is sometimes
hereinafter referred to as a "Group" and collectively as the "Groups," and each
of the Founders, DIC Technology Holdings Ltd., PEC Israel Economic Corporation
and GE and any other individual, corporation, limited liability company,
partnership, trust, unincorporated organization, other entity or a government or
any agency or political subdivision thereof (a "Person") who shall become a
party to or agree to be bound by the terms of this Agreement after the date
hereof is sometimes hereinafter referred to as a "Shareholder" and collectively
as the "Shareholders."
W I T N E S S E T H:
WHEREAS, the Shareholders are or will be the owners beneficially and of
record of the number of Ordinary Shares, par value NIS 0.01 per share (the
"Ordinary Shares"), of Gilat Satellite Networks Ltd. (the "Company") set forth
below each of their names on the signature pages hereto; and
WHEREAS, the Shareholders desire for their mutual benefit and protection to
enter into this Agreement for the purpose of regulating certain aspects of their
relationship with respect to the Company and to set forth certain of their
respective rights and obligations with respect to their Ordinary Shares (whether
issued or acquired hereafter, including all Ordinary Shares issuable upon the
exercise of warrants, options or other rights to acquire Ordinary Shares, or
upon the conversion or exchange of any security).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
Section 1. Management
1.1 Election of Directors. The Shareholders hereby agree that they will
vote all of the Ordinary Shares then held by them at any meetings of the
shareholders of the Company (or in any action in lieu thereof) in order that the
<PAGE>
Board of Directors of the Company shall be comprised of seven (7) members. So
long as the Founders Parties (as defined below) shall (a) collectively own not
less than thirty percent (30%) of the number of Ordinary Shares owned by them on
the date hereof or (b) at least one of the Founders shall be serving as an
employee of the Company, the holders of a majority of the Ordinary Shares held
by the Founders Group (and if no such Ordinary Shares are then held by the
Founders Group, then any Founders then serving as employees of the Company)
shall have the right to designate three individuals as nominees for election as
directors of the Company (collectively, the "Founder Directors"). So long as the
IDB Group shall collectively own (A) not less than fifty percent (50%) of the
number of Ordinary Shares owned by them on the date hereof, the holders of a
majority of the Ordinary Shares held by the IDB Group shall have the right to
designate two individuals as nominees for election as directors of the Company
or (B) less than fifty percent (50%) but not less than twenty-five percent (25%)
of the number of Ordinary Shares owned by them on the date hereof, the holders
of a majority of the Ordinary Shares held by the IDB Group shall have the right
to designate one individual as a nominee for election as a director of the
Company (any such directors, collectively, the "IDB Directors"). So long as the
GE Parties (as defined below) shall collectively own (A) not less than fifty
percent (50%) of the number of Ordinary Shares owned by them on the date hereof,
GE shall have the right to designate two individuals as nominees for election as
directors of the Company or (B) less than fifty percent (50%) but not less than
thirty-three percent (33%) of the number of Ordinary Shares owned by them on the
date hereof, GE shall have the right to designate one individual as a nominee
for election as a director of the Company (any such directors, collectively, the
"GE Directors"). Each of the Founders Parties, the IDB Group and the GE Parties
hereby agree to vote their Ordinary Shares at any meeting of the shareholders of
the Company (or in any action in lieu thereof) in favor of the election of the
Founder Directors, the IDB Directors and the GE Directors.
1.2 Definitions. For purposes of this Agreement:
1.2.1 "Founders Parties" shall mean the Founders and any members of
their immediate families, trusts for the benefit of any of the Founders and/or
members of their immediate families, and Persons which the Founders and/or
members of their immediate families control.
1.2.2 "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
1.2.3 "affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person; provided, however, that no Person shall be deemed to
be
2
<PAGE>
an affiliate of another Person solely by reason of such Person's investment in
the Company.
1.2.4 "GE Parties" shall mean GE and its affiliates.
1.3 Increase in Number of Directors. In the event the Company is required
by Israeli law or other applicable law or regulation to include one or more
independent directors from the public on the Board of Directors of the Company
and the then serving directors of the Company are unable to satisfy such
requirement, the Shareholders agree to vote all of the Ordinary Shares then held
by them in order that the Board of Directors be increased in size by the minimum
number of directors necessary to facilitate compliance with such law or
regulation and to vote all of the Ordinary Shares in favor of nominees
reasonably acceptable to each of the Groups (which nominees shall be residents
and citizens of the State of Israel) eligible to fulfill such legal or
regulatory requirement.
1.4 Vacancies and Removal; Action by Shareholders. If a vacancy is created
on the Board of Directors by reason of the death, disability, removal or
resignation of any director, the party, if any, which, under Section 1.1, is
entitled to nominate the director whose death, disability, removal or
resignation resulted in such vacancy shall be entitled to designate a new
nominee to serve as director, and the Shareholders and, to the extent consistent
with applicable law, their nominee directors shall use their best efforts as
soon as reasonably practicable to take any and all actions within their control
to fill such vacancy with such nominee. In addition, the Shareholders and, to
the extent consistent with applicable law, their nominee directors shall use
their best efforts as soon as reasonably practicable to take any and all actions
within their control to remove any directors and reduce the size of the Board of
Directors to the extent that such removal is intended to remove a nominee to the
Board of Directors whom the relevant party is no longer entitled to nominate in
accordance with the terms of Section 1.1 hereof. Each of the Founders Parties,
the IDB Group and the GE Parties hereby agree to vote their Ordinary Shares in
favor of such nominees, removals and reductions, as applicable.
1.5 Shareholder Voting. (a) Each of the Shareholders hereby agrees that it
will attend and take all necessary actions to constitute a portion of the
applicable quorum at any relevant meeting of the shareholders of the Company,
and at any such meeting (or in any action in lieu thereof) it will vote all of
the Ordinary Shares then owned by it in accordance with, and to fully give
effect to, the terms of this Agreement, and, to the extent not contrary to the
terms of this Agreement or applicable law or regulation, with the
recommendations of the Board of Directors of the Company with respect to any
resolutions or other matters submitted to a vote of the shareholders of the
Company (other than matters relating to the election of directors which are
explicitly governed by Section 1.1 hereof); provided, however, that no Group
shall be obligated by this Section 1.5(a) to vote in accordance with the
recommendations of the Board of Directors to the extent that (i) such vote
3
<PAGE>
relates to a merger (which merger results in a Change of Control (as defined
below) or sale of all or substantially all of the Company or a reorganization or
restructuring of the Company changing the rights of shareholders in a
significant and adverse manner or a transaction with substantially similar
results or (ii) such Group in reasonable good faith determines that voting in
accordance with such recommendation is directly and materially adverse to the
interests of such Group, solely in its capacity as a shareholder(s) of the
Company (provided, that notwithstanding the preceding proviso, all of the Groups
shall at all times be required to comply with all of the other terms of this
Agreement).
Subject to Section 2.1(b) hereof, in the event that the Board of Directors
shall not make any recommendation with respect to any such resolution or other
matter submitted to a vote of the shareholders of the Company, each of the
Shareholders shall be free, subject to compliance with the terms of this
Agreement, to vote thereon as such Shareholder deems appropriate.
(b) For a period of three (3) years from the date of this Agreement, each
of the Shareholders hereby agrees that at any meeting of the shareholders of the
Company (or in any action in lieu thereof) it will vote all of the Ordinary
Shares then owned by it in favor of, and will (to the extent permitted by
applicable law) direct its respective nominee(s) on the Board of Directors of
the Company to vote at any meeting of, or in any action by, the Board of
Directors in favor of the retention in their respective offices of all senior
officers of the Company holding such offices as of the date of this Agreement,
including, but not limited to, the Chairman, the Chief Executive Officer, the
President, the Chief Operating Officer, the General Counsel and the Chief
Financial Officer of the Company; provided, however, that nothing in this
Section 1.5(b) shall require any nominee to the Board of Directors of the
Company to vote in any manner which such nominee in good faith determines will
violate such nominee's fiduciary duties under applicable law.
1.6 Other Voting Agreements. Each of the Parties hereby agrees that no two
Groups shall enter into any formal voting trusts, agreements or other similar
arrangements (other than pursuant to this Agreement and the Agreement and Plan
of Merger, by and among GE Americom, GE Capital Spacenet Services, Inc.
("Spacenet"), Jonah Acquisition Corp. and the Company, dated as of September 25,
1998, and pursuant to the transactions contemplated hereunder and thereunder)
(each, an "Other Agreement") in respect of the voting of all or a portion of the
Ordinary Shares owned by them or in respect of the voting by their respective
nominee(s) to the Board of Directors of the Company, which Other Agreement is
not consented to in writing by the third Group (the "Outside Group"), for so
long as such Outside Group shall be entitled, pursuant to the terms of Section
1.1 hereof, to nominate at least one member of the Board of Directors of the
Company. Nothing in this Section 1.6 shall prevent the members of any Group (or
their respective nominees to the Board of Directors) from entering into any such
voting trust, agreement or other similar arrangements solely among the members
of such Group
4
<PAGE>
(or their respective nominees), in each case to the extent permitted by
applicable law.
Section 2. Standstill
2.1 Restrictions on Certain Activities by GE. GE hereby agrees that during
the term of the Agreement it will not, and will not permit any of the GE Parties
to, without the prior approval of the holders of a majority of the Ordinary
Shares then held by the Founders Group or the holders of a majority of the
Ordinary Shares then held by the IDB Group, respectively:
(a) Acquire (other than pursuant to the Merger Agreement and the contracts
and agreements referred to therein) or offer to acquire, whether by
purchase, gift or by joining a partnership or other Group (as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), any assets (other than acquisitions of
inventory or other materials in the ordinary course of business of the
Company), businesses or properties of the Company, or any Ordinary
Shares of the Company, securities convertible into, exchangeable for,
or exercisable for Ordinary Shares, which acquisitions of Ordinary
Shares or securities convertible into, exchangeable for, or
exercisable for Ordinary Shares, result in the GE Parties being the
beneficial owners of greater than thirty-three percent (33%) of the
Ordinary Shares of the Company then outstanding; provided, that in the
event of a bona fide tender offer (a "Third Party Tender Offer") for
at least 50% of the outstanding Ordinary Shares of the Company by a
party not affiliated with any of the Groups at a price in excess of
the Market Price (as defined below) of such Ordinary Shares
immediately prior to the announcement of such Third Party Tender
Offer, the GE Parties shall be free, during the pendency of the Third
Party Tender Offer, to commence a tender offer for all of the
outstanding Ordinary Shares or to acquire Ordinary Shares on the open
market or otherwise notwithstanding the provisions of this Section
2.1(a). Any Ordinary Shares acquired pursuant to the proviso at the
end of the preceding sentence shall be subject to all of the terms of
this Agreement. For purposes of this Agreement, "Market Price" of the
Ordinary Shares shall mean the average closing sales price per
Ordinary Share on the principal securities market on which such
Ordinary Shares are traded for the twenty (20) trading days ending on
the day prior to the date of commencement of a Third Party Tender
Offer.
5
<PAGE>
(b) (i) Solicit, initiate or participate in any "solicitation" of
"proxies" or become a participant in any "election contest" (as such
terms are defined in Regulation 14A under the Exchange Act); (ii)
Call, or in any way participate in a call for, any special or
extraordinary meeting of shareholders of the Company; (iii) Initiate
or propose any shareholder proposal or participate in the making of,
or solicit shareholders for the approval of, one or more shareholder
proposals relating to the Ordinary Shares; (iv) Subject any of its
Ordinary Shares to any voting trust or voting agreement or
arrangement, except as otherwise provided herein; (v) Form, join or in
any way participate in any Group with respect to any Ordinary Shares
(or any securities the ownership of which would make the owner thereof
a beneficial owner of Ordinary Shares) otherwise than as a result of
this Agreement; (vi) Solicit or propose to effect or negotiate any
form of business combination, restructuring, recapitalization or other
extraordinary transaction involving any change of control of the
Company; (vii) Disclose or act upon any intention, purpose, plan or
proposal with respect to its Ordinary Shares or the Company which is
inconsistent with the terms of this Agreement; (viii) Seek election to
or seek to place a representative or nominee on the Board of Directors
of the Company or seek the removal of any member of the Board of
Directors of the Company, in each case otherwise than in accordance
with the terms of this Agreement; or (ix) Assist, advise, encourage or
act in concert with any Person with respect to, or seek to do, any of
the foregoing.
2.2 Release of Certain Restrictions Under Certain Circumstances. (a)
Notwithstanding the provisions of Section 2.1 above, the restrictions set forth
in Section 2.1 shall not apply in respect of any transaction or event (a "Change
of Control Transaction") that results or is reasonably likely to result in a
Change of Control (as defined below) of the Company, unless the holders of a
majority of the Ordinary Shares then held by the Founders Group and the holders
of a majority of the Ordinary Shares then held by the IDB Group, respectively,
each certify in writing in response to a reasonable request by GE that they
intend, in connection with such Change of Control Transaction, to maintain
ownership of all or substantially all of the Ordinary Shares owned by them
immediately prior to the commencement of such Change of Control Transaction and,
solely in their capacities as shareholders of the Company, to oppose (to the
extent such opposition is in compliance with the terms of this Agreement and
applicable law) such Change of Control Transaction. For purposes of this
Agreement, a "Change of Control" shall mean: (i) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have
6
<PAGE>
beneficial ownership of all shares that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total voting power of the
voting stock of the Company, whether as a result of issuance of securities of
the Company, any merger, consolidation, liquidation or dissolution of the
Company, any direct or indirect transfer of securities or otherwise; (ii) (1)
another corporation merges into the Company or the Company consolidates with or
merges into any other corporation, or (2) the Company conveys, transfers or
leases all or substantially all its assets (computed on a consolidated basis) to
any person or group, in one transaction or a series of transactions other than
any conveyance, transfer or lease between the Company and a subsidiary of the
Company, in each case in one transaction or a series of related transactions
with the effect that either (x) immediately after such transaction any person or
entity or group (as so defined) of persons or entities (other than any of the
Parties hereto) shall have become the beneficial owner of securities of the
surviving corporation of such merger or consolidation representing a majority of
the combined voting power of the outstanding securities of the surviving
corporation ordinarily having the right to vote in the election of directors or
(y) the securities of the Company that are outstanding immediately prior to such
transaction and which represent 100% of the combined voting power of the
securities of the Company ordinarily having the right to vote in the election of
directors are changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or exchanged for,
in addition to any other consideration, securities of the surviving corporation
that represent immediately after such transaction, at least a majority of the
combined voting power of the securities of the surviving corporation ordinarily
having the right to vote in the election of directors; or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of 50% of the
directors of the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
(b) Notwithstanding anything else herein to the contrary, the restrictions
set forth in Section 2.1 shall no longer apply at any time that each of (i) the
Founders Group (together with any other Founders Parties) and (ii) the IDB Group
no longer collectively hold at least fifty percent (50%) of the Ordinary Shares
held by them, respectively, on the date of this Agreement.
2.3 Put by Founders Group and IDB Group in Certain Circumstances. In the
event (a "Put Event") that following any waiver of the restrictions set forth in
Section 2.1 pursuant to the waiver provisions set forth in the first paragraph
of Section 2.1, GE (together with any other GE Parties) at any time collectively
are the beneficial owners of greater than fifty percent (50%) of the
7
<PAGE>
outstanding Ordinary Shares, each of the Founders Parties and the IDB Group
shall have an option (the "Put Option"), on ten days' written notice from one or
more of the Founders Parties (the "Founders Notice") or from one or more members
of the IDB Group (the "IDB Notice"), to cause GE to purchase all or a portion of
the Ordinary Shares then owned by it at the Market Price (as defined below). The
GE Parties shall give the IDB Group and the Founders prompt notice of the
occurrence of a Put Event and the Put Option shall be effective until ninety
days from the receipt by the Founders and the IDB Group of such written notice.
For purposes of this Agreement, "Market Price" shall mean the closing price of
the Ordinary Shares on the principal securities exchange or other market on
which the Ordinary Shares are then traded or quoted for the last trading day
preceding the date of the relevant Founders Notice or IDB Notice, as applicable.
3. Restrictions on Transfer
3.1 General Restrictions on Transfer. Except as otherwise provided in
Section 3.4 below, for a period of three (3) years from the date of this
Agreement, each GE Party agrees that such GE Party will not, without the prior
written consent of each of the holders of a majority of the Ordinary Shares then
held by the Founders Group and the holders of a majority of the Ordinary Shares
then held by the IDB Group, directly or indirectly, sell, hypothecate, give,
bequeath, transfer, assign, pledge or in any other way whatsoever encumber or
dispose of (any such event, a "Transfer") any Ordinary Shares now or hereafter
at any time owned by such Shareholder (or any interest therein) to another
Person ("Transferee"), if as a result of such Transfer the GE Parties shall
collectively own less than fifteen percent (15%) of the then outstanding
Ordinary Shares of the Company; provided, however, that the restrictions set
forth in this Section 3.1 and in Section 3.4 below shall cease to apply (1) on
any Determination Date (as defined below) with respect to the Unrestricted
Percentage (as defined below) of the Ordinary Shares held in the aggregate by
the GE Parties on the date hereof, (2) at any time that the GE Parties shall
collectively own less than 5% of the then outstanding Ordinary Shares of the
Company, (3) if at any date the Market Price of the Ordinary Shares is below
$7.00 per share (adjusted to give effect to any change in the capitalization of
the Company, including as a result of any stock split, stock dividend or stock
combination), (4) under the circumstances permitting a Contingent Demand
Registration Request as described in Section 3.1(2) of the Registration Rights
Agreement dated on or about the date hereof among the Company and certain GE
entities, and (5) (q) in respect of a Change of Control Transaction that has
been approved by a majority of the directors of the Company with no material
interest in the matter being considered (other than in their capacities as
shareholders of the Company), or if at such time there are no such directors
with no material interest in the matter being considered, a majority of the
Board of Directors of the Company, unless the holders of a majority of the
Ordinary Shares then held by the Founders Group and the holders of a majority of
the Ordinary Shares then held by the IDB Group, respectively, each certify in
writing in response to a reasonable request by
8
<PAGE>
GE that they intend, in connection with such Change of Control Transaction, to
maintain the ownership of all or substantially all of the Ordinary Shares owned
by them immediately prior to the commencement of such Change of Control
Transaction and, solely in their capacities as shareholders of the Company, to
oppose (to the extent such opposition is in compliance with the terms of this
Agreement and applicable law) such Change of Control Transaction or (r)
following any Change of Control Transaction, provided that no GE Parties
participated in any manner in the relevant Change of Control Transaction. For
purposes of this Agreement, "Unrestricted Percentage" shall mean at any given
time (the "Determination Date") a percentage equal to the difference between (a)
one hundred percent (100%) minus (b) the greater of (x) the percentage of the
Ordinary Shares held by the Founders Parties on the date hereof still held by
the Founders Parties on the Determination Date or (y) the percentage of the
Ordinary Shares held by the IDB Group on the date hereof still held by the IDB
Group on the Determination Date (by way of example, if at the Determination Date
the Founders Parties and the IDB Group hold 40% and 60%, respectively, of the
Ordinary Shares held by them on the date hereof, the restrictions set forth in
this Section 3.1 and in Section 3.4 below shall no longer apply to 40% (i.e.
100% minus 60%) of the Ordinary Shares held by the GE Parties on the date
hereof). The parties to this Agreement will use their respective best efforts to
cause the Company not to transfer, and to instruct any transfer agent in respect
of the Ordinary Shares not to transfer, upon its books or stock records any
Ordinary Shares to any Person to the extent prohibited by this Agreement and any
purported transfer in violation hereof shall be null and void and of no effect.
Notwithstanding the foregoing, a Shareholder which is a GE Party may, without
the consents required by the first sentence of this Section 3.1, Transfer all or
part of its or his Ordinary Shares to a GE Transferee (as defined below),
provided that such GE Transferee in each such case, as a condition precedent to
the validity of such Transfer, agrees in a writing reasonably satisfactory to
counsel for the Founders Group and the IDB Group to be bound by all of the terms
and conditions of this Agreement as if named as a "Shareholder" hereunder. For
purposes of this Agreement, a "GE Transferee" of any GE Party shall be (i) any
other Shareholder or, to the extent permitted by applicable law, the Company or
(ii) any affiliate of such GE Party.
3.2 Involuntary Transfer. In the case of any Transfer of title or
beneficial ownership of the Ordinary Shares of a Shareholder which is a GE Party
upon default, foreclosure, forfeit, court order, or otherwise than by a
voluntary decision on the part of the respective GE Party (an "Involuntary
Transfer"), such GE Party (or its legal representatives) shall promptly (but in
no event later than two (2) business days after such Involuntary Transfer)
furnish written notice to the Founders Group and the IDB Group indicating that
the Involuntary Transfer has occurred, specifying the name of the Person to whom
such Ordinary Shares have been transferred, giving a detailed description of the
circumstances giving rise to, and stating the legal basis for, the Involuntary
Transfer.
9
<PAGE>
3.3 Veto on Certain Sales by GE Parties. Notwithstanding anything in this
Agreement to the contrary, during the term of the Agreement, none of the GE
Parties shall Transfer any of the Ordinary Shares held by it to any Competitor
(as defined below), without the prior written consent of each of (i) the holders
of a majority of the Ordinary Shares then held by the Founders Group and (ii)
the holders of a majority of the Ordinary Shares then held by the IDB Group. In
addition to any other consent or notice that may be required pursuant to the
terms of this Agreement, each GE Party agrees to give the Founders Group and the
IDB Group at least ten (10) days' advance written notice of any proposed
Transfer which requires consent pursuant to this Section 3.3, including the
number of Ordinary Shares to be transferred and the identity of the proposed
transferee. For the purposes of this Agreement, the term "Competitor" shall mean
any Person with a public equity market capitalization of at least $200 million
that prior to such acquisition of Ordinary Shares is engaged in a material
manner in the satellite communications manufacturing, equipment or service
industries. Notwithstanding the other provisions of this Section 3.3, (i) the GE
Parties shall be permitted to Transfer Ordinary Shares in any open-market or
reasonably similar "blind" Transfer notwithstanding that the other party to such
Transfer may be a Competitor, provided that such GE Party in good faith did not
know, and did not have any reasonable basis to believe, that such other party
was a Competitor, and (ii) the GE Parties shall be permitted to Transfer
Ordinary Shares without giving effect to the restrictions set forth in this
Section 3.3 (x) in respect of a Change of Control Transaction for such Ordinary
Shares that has been approved by a majority of the directors of the Company with
no material interest in the matter being considered (other than in their
capacities as shareholders of the Company), or if at such time there are no such
directors with no material interest in the matter being considered, a majority
of the Board of Directors of the Company, unless the holders of a majority of
the Ordinary Shares then held by the Founders Group and the holders of a
majority of the Ordinary Shares then held by the IDB Group, respectively, each
certify in writing in response to a reasonable request by GE that they intend,
in connection with such Change of Control Transaction, to maintain the ownership
of all or substantially all of the Ordinary Shares owned by them immediately
prior to the commencement of such Change of Control Transaction and, solely in
their capacities as shareholders of the Company, to oppose (to the extent such
opposition is in compliance with the terms of this Agreement and applicable law)
such Change of Control Transaction, and (y) at any time that the GE Parties
shall collectively own less than 5% of the then outstanding Ordinary Shares of
the Company.
3.4 Restrictions on Liens. During the three year period referred to in
Section 3.1 above, no GE Party shall create, incur or assume or suffer to exist
any lien, security interest, pledge, claim, option, right of first refusal or
first offer or other encumbrance ("Liens") on their respective Ordinary Shares
other than Liens created pursuant to the terms of this Agreement and the
Agreement and Plan of Merger by and among GE Americom, Spacenet, Jonah
Acquisition Corp. and the
10
<PAGE>
Company, dated as of September 25, 1998; provided, however, that the
restrictions set forth in this Section 3.4 shall not apply to any bona fide
pledge of Ordinary Shares to a commercial bank, savings and loan institution or
any other similar lending institution as security for any indebtedness to such
lender, provided, that prior to any such pledge, the Founders Group and the IDB
Group are informed in writing of such pledge and the pledgee shall deliver to
each of the Founders Group and the IDB Group its written agreement, in form and
substance satisfactory to counsel for such Groups, that upon any foreclosure
such pledgee shall comply with the terms of this Agreement applicable to the GE
Parties and will be bound by all of the terms and conditions of this Agreement
as if named as a "Shareholder" hereunder. Any attempt to place a Lien upon the
Ordinary Shares in violation of this Agreement shall be null and void and the
parties to this Agreement will use their respective best efforts to insure that
neither the Company nor any transfer agent shall give any effect to such
attempted encumbrance in its stock records.
3.5 Tax Matters Agreement. Notwithstanding anything in this Agreement to
the contrary, if at any time GE becomes entitled to the registration rights set
forth in Section 16(c) of the Tax Matters Agreement (the "Tax Agreement") dated
as of September 25, 1998, among GE Americom, the Company, Spacenet and the
Spacenet Subsidiaries (as defined in the Tax Agreement), GE shall be permitted
to Transfer such number of Ordinary Shares equal to the number of Tax Demand
Shares (as defined in, and determined in accordance with, the terms of the
Registration Rights Agreement, dated as of December 31, 1998, among the Company
and GE (as defined therein)); provided, however, that the restrictions set forth
in Section 3.3 hereof shall apply to any such Transfer.
Section 4. Rights of First Refusal
(i) If at any time during the term of this Agreement a Shareholder receives
from an unrelated third party, or makes to an unrelated third party, a bona fide
offer in writing to purchase all or a portion of his or its Ordinary Shares (the
"Shareholder Offer"), and such Shareholder (the "Offering Shareholder") desires
to sell such Ordinary Shares pursuant to the Shareholder Offer, he or it shall
deliver notice of such election (the "Offer Notice") in writing to each of the
other Groups (other than the Group to which the Offering Shareholder belongs)
together with a copy of such Shareholder Offer. Such Offer Notice shall state
the terms of such Shareholder Offer and the identity and business address of the
offeror (the "Offeror") and shall be deemed an offer by the Offering Shareholder
to sell all of his or its Ordinary Shares that are the subject of the
Shareholder Offer (the "Offered Shares") at a purchase price and on the terms
and conditions as set forth in the bona fide offer accompanying the Offer
Notice.
(ii) Subject to the other terms of the Agreement (including but not limited
to Section 2) each of the other Groups (other than the Group to which the
Offering Shareholder belongs; together with the Founders Parties or the GE
11
<PAGE>
Parties, as applicable, the "Other Groups") shall have a first option (each a
"First Option") to purchase a portion of the Offered Shares equal to the product
of (a) the number of Offered Shares multiplied by (b) a fraction, the numerator
of which is the number of Ordinary Shares owned by such Other Group and the
denominator of which is the aggregate number of Ordinary Shares owned by the
Other Groups collectively. A First Option shall be exercisable by written notice
from the relevant Other Group to the Offering Shareholder and the other Other
Group within the fifteen business days (the "First Option Period") immediately
following receipt of the Offer Notice.
If one of the Other Groups does not exercise its First Option with respect
to all or a portion of the Offered Shares subject to its First Option within the
First Option Period, the other Other Group shall thereafter have the second
option (the "Second Option") to purchase all or a portion of such Offered
Shares. The Second Option shall be exercisable by written notice from the Buyer
to the Offering Shareholder and the other Other Group within the fifteen
business days (the "Second Option Period") immediately following the expiration
of the First Option Period. Any allocation among the members of an Other Group
of the rights set forth in this Section 4(ii) shall be at the sole discretion of
the members of such Other Group; provided, that such allocation shall be set
forth in the written notice delivered to the Offering Shareholders pursuant to
this Section 4(ii).
(iii) If either the First Option or the First Option together with the
Second Option are not exercised with respect to all of the Offered Shares, then,
all exercises of such options to purchase shall be null and void, and the
Offering Shareholder shall be entitled to sell all, but not less than all, of
the Offered Shares to the Offeror, but only on terms no more favorable to the
Offeror than those contained in the Shareholder Offer and within thirty (30)
days from the expiration of the Second Option Period (the "Disposition Period").
If the Offering Shareholder does not sell the relevant Offered Shares in strict
compliance with this Section 4(iii), any other disposition of its or his
Ordinary Shares must be made only pursuant to a new bona fide offer and the
provisions of this Section 4 or otherwise in accordance with the terms of this
Agreement.
(iv) The closing of any purchase and sale contemplated by Section 4(ii)
above shall take place at the offices of the Company, at 10:00 a.m, on the
fortieth business day after delivery of the Offer Notice, or such other time and
place as agreed upon by the parties. At the closing, the Offering Shareholder
shall deliver in exchange for the purchase price due hereunder certificates for
the Ordinary Shares being sold duly endorsed for transfer with signatures
guaranteed and with all applicable documentary and/or transfer stamps affixed.
(v) The provisions of this Section 4 shall not apply to (a) any Transfers
pursuant to a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), or in a sale transaction in the course of
trading in the
12
<PAGE>
Company's Ordinary Shares on the National Market System or Small Capitalization
System of the National Association of Securities Dealers, Inc. or any other
securities exchange (including, but not limited to, pursuant to a block trade),
(b) any Transfers (1) in respect of a Change of Control Transaction that has
been approved by a majority of the directors of the Company with no material
interest in the matter being considered (other than in their capacities as
shareholders of the Company), or if at such time there are no such directors
with no material interest in the matter being considered, a majority of the
Board of Directors of the Company, unless the holders of a majority of the
Ordinary Shares then held by the Founders Group and the holders of a majority of
the Ordinary Shares then held by the IDB Group, respectively, each certify in
writing in response to a reasonable request by GE that they intend, in
connection with such Change of Control Transaction, to maintain the ownership of
all or substantially all of the Ordinary Shares owned by them immediately prior
to the commencement of such Change of Control Transaction and, solely in their
capacities as shareholders of the Company, to oppose (to the extent such
opposition is in compliance with the terms of this Agreement and applicable law)
such Change of Control Transaction or (2) following any Change of Control
Transaction, provided that no GE Parties participated in any manner in the
relevant Change of Control Transaction, or (c) any Transfers by any member of a
Group or a Permitted Transferee (as defined below) thereof, on the one hand, to
another member of such Group or a Permitted Transferee of any member of such
Group, on the other hand, provided, that any such Permitted Transferee in each
such case agrees in a writing satisfactory to counsel for the Groups of which
the relevant transferor is not a member (or a Permitted Transferee thereof) to
be bound by all of the terms and conditions of this Agreement as if named as a
"Shareholder" hereunder.
For purposes of this Agreement, a "Permitted Transferee" of any Person
shall be (a) the Company (b) such Person's spouse, parents, step-parents,
brothers, sisters or half-siblings; (c) such Person's children, step-children or
their lineal descendants; (d) any trust of which such Person is the trustee and
the sole beneficiaries of which are such Person, such Person's spouse, parents,
step-parents, brothers, sisters, half-siblings, children, step-children or their
lineal descendants; (e) any partnership, the general partner(s) and limited
partner(s) (if any) of which are one or more of such Person, such Person's
spouse, parents, step-parents, brothers, sisters, half-siblings, children,
step-children or their lineal descendants; or (f) any affiliate of such Person.
(vi) If at any time the members of any Group (together with any other
Founders Parties or GE Parties, as applicable) no longer collectively hold 50%
of the Ordinary Shares held by them on the date of this Agreement, such Group
(together with any other Founders Parties or GE Parties, as applicable) shall no
longer have rights to a First Option or the Second Option in relation to any
Offered Shares and all calculations pursuant to Section 4(ii) hereof shall be
made without inclusion of any Ordinary Shares held by members of such Group
(together with any other
13
<PAGE>
Founders Parties or GE Parties, as applicable); provided that, upon reasonable
request of any other Group, each Group shall reasonably and in good faith
determine whether it intends to exercise any first-refusal rights under this
Section 4 and shall reasonably promptly give notice of such determination to the
other Groups and, following any such notice of having no intention of exercising
its rights, until such time as such Group notifies the other Groups of a change
of its intentions, such Group shall no longer have rights to a First Option or
the Second Option in relation to any Offered Shares and all calculations
pursuant to Section 4(ii) hereof shall be made without inclusion of any Ordinary
Shares held by members of such Group (together with any other Founders Parties
or GE Parties, as applicable). In addition, if at any time the members of any
Group (together with any other Founders Parties or GE Parties, as applicable) no
longer collectively hold 5% or more of the Ordinary Shares then outstanding,
such Group (together with any other Founders Parties or GE Parties, as
applicable) shall be permitted to sell the Ordinary Shares held by members of
such Group (together with any other Founders Parties or GE Parties, as
applicable) without giving effect to the restrictions set forth in this Section
4.
(vii) The provisions of this Section 4 shall apply regardless of the form
of consideration contained in the Shareholder Offer. If and to the extent that
any Shareholder Offer shall include any non-cash consideration, any member of an
Other Group may exercise its rights under its First Option or Second Option, as
applicable, with respect to the non-cash consideration portion of such
Shareholder Offer by delivering either substantially identical non-cash
consideration or cash in the amount of the fair market value of such non-cash
consideration, which fair market value shall be determined by agreement of the
relevant parties or by a nationally recognized independent valuation consultant
or appraiser (with experience in evaluating such property) selected by the
relevant member of the Other Group and reasonably satisfactory to the Offering
Shareholder.
5. Representations and Warranties of the Shareholders.
Each of the Shareholders represents and warrants to each other as follows:
5.1 Organization. If it is an entity, it is a corporation, limited
partnership or other entity duly organized and validly existing under the laws
of its respective jurisdiction of organization.
5.2 Authority. It has full power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
5.3 Binding Obligation. The execution, delivery and performance of this
Agreement by it and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary action on its
part,
14
<PAGE>
and this Agreement constitutes its binding obligation, enforceable against it in
accordance with its terms, except insofar as enforceability may be limited by
bankruptcy, insolvency, moratorium or other laws which may affect creditors'
rights and remedies generally and by principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
5.4 No Conflict. The execution, delivery and performance of this Agreement
by it and the consummation by it of the transactions contemplated hereby will
not, with or without the giving of notice or the lapse of time, or both, (i)
violate any provision of law, statute, rule or regulation to which it is
subject, (ii) violate any order, judgment or decree applicable to it, or (iii)
conflict with, or result in a breach or default under, any term or condition of
its certificate of incorporation, bylaws or equivalent governing document or any
material agreement or other material instrument to which it is a party or by
which it or its property is bound.
Section 6. Legend on Certificates. The Shareholders agree that the
following legend or such legend as shall be substituted therefor by amendment of
this Agreement shall be placed on the certificates representing any Ordinary
Shares owned by each of them and shall be maintained on each and every such
certificate so long as the applicable restrictions contained in this Agreement
remain in effect:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A SHAREHOLDERS' AGREEMENT DATED AS OF DECEMBER 31, 1998
(THE "SHAREHOLDERS' AGREEMENT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE
WITH THE SHAREHOLDERS' AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY."
Section 7. Term of Agreement. This Agreement shall terminate on the tenth
anniversary of this Agreement.
Section 8. Entire Agreement; Amendments. This Agreement, including the
other documents and writings referred to herein or delivered pursuant hereto and
which form a part hereof, contains the entire understanding of the parties with
respect to its subject matter. There are no restrictions, agreements, promises,
warranties, covenants or undertakings with respect to such matters other than
those expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter, including but not limited to the Voting Agreement, dated as of March 25,
1993, by and among the Founders, the IDB Group and the Athena Group (as defined
therein), and the Shareholders Agreement, dated as of March 25, 1993, by and
among the Founders and the IDB Group, both of which hereby shall be terminated
for all purposes as of the date of this Agreement; provided, that all of
15
<PAGE>
the parties hereto acknowledge the existence of a voting agreement among the
members of the IDB Group, which voting agreement will remain in full force and
effect after the date of this Agreement until amended, modified or terminated by
the parties thereto. This Agreement may not be amended except by an instrument
in writing signed on behalf of all of the parties hereto. Any agreement on the
part of a party hereto to any extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party.
Section 9. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable.
Section 10. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 11. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given on the date of delivery, if personally delivered, or if mailed
(registered or certified mail (in the case of international mailings, by
first-class air-mail), postage prepaid, return receipt requested), on the fifth
(5th) business day following mailing as follows:
If to the Founders Group:
c/o Gilat Satellite Networks Ltd.
Gilat House
Yegia Kapayim St., Kiryat Arye
Petah Tikva 49130
Israel
Fax: (972) 3-921-2252
Attention: General Counsel
with a copy to:
Kleinhendler & Halevy
30 Kalisher Street
Tel Aviv, Israel 65257
Fax: (972) 3-510-7528
Attention: Gene Kleinhendler, Adv.
and
16
<PAGE>
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Fax: (212) 735-2000
Attention: Hildy Shandell, Esq.
If to the IDB Group:
c/o DIC Communication and Technology Ltd.
14 Beit Hashoeva Lane
Tel Aviv, Israel 65814
Fax: 972-3-560-2327
Attention: The Managing Director
and
c/o PEC Israel Electric Corporation
511 Fifth Avenue
New York, New York 10017
Fax: (212) 509-6281
Attention: President
If to GE:
c/o GE American Communications, Inc.
4 Research Way
Princeton, NJ 08540-6684
Fax: (609) 987-4233
Attention: General Counsel
with a copy to:
Hogan & Hartson L.L.P.
555 13th Street NW
Washington, D.C. 20004
Fax: 202-637-5910
Attention: Steve Kaufman, Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective fifteen days after mailing notice thereof as set forth above.
Section 12. Successors and Assigns. All agreements herein contained shall
apply to and bind, and inure to the benefit of and be enforceable by, each of
the parties hereto and each of their respective heirs, executors,
administrators, successors and permitted assigns.
Section 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LOCAL
17
<PAGE>
LAW OF THE STATE OF ISRAEL WITHOUT GIVING EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 14. Recapitalization, Exchanges, Stock Options, etc. Affecting the
Ordinary Shares. As used in this Agreement, Ordinary Shares include any such
shares issued upon exercise of stock options, warrants or other convertible
securities. The provisions of this Agreement shall apply to the full extent set
forth herein with respect to (a) the Ordinary Shares and any option, right or
warrant to acquire Ordinary Shares and owned on the date hereof or hereafter
acquired, and (b) any and all shares of capital stock of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or in
substitution for the Ordinary Shares, by combination, recapitalization,
reclassification, merger, consolidation or otherwise. In the event of any change
in the capitalization of the Company, as a result of any stock split, stock
dividend or stock combination, the provisions of this Agreement shall be
appropriately adjusted.
Section 15. Consent to Jurisdiction. Each Shareholder agrees that any
proceeding arising out of or relating to this Agreement or the breach or
threatened breach of this Agreement may be commenced and prosecuted in a court
in the State of Israel. Each Shareholder hereby irrevocably and unconditionally
consents and submits to the non-exclusive personal jurisdiction of any court in
the State of Israel in respect of any such proceeding. Each Shareholder consents
to service of process upon it with respect to any such proceeding by registered
mail, return receipt requested, and by any other means permitted by applicable
laws and rules. Each Shareholder waives any objection that it may now or
hereafter have to the laying of venue of any such proceeding in any court in the
State of Israel and any claim that it may now or hereafter have that any such
proceeding in any court in the State of Israel has been brought in an
inconvenient forum.
Section 16. Injunctive Relief. Each of the parties to this Agreement
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party or parties would be irreparably harmed and could not be made
whole by monetary damages. It is accordingly agreed that the parties will waive
the defense in any action for injunctive relief, including specific performance,
that a remedy at law would be adequate and that the parties, in addition to any
other remedy to which they may be entitled to at law or in equity, shall be
entitled to injunctive relief, including specific performance, to enforce this
Agreement in any action instituted in any court of the State of Israel or any
court in the United States or any state thereof having subject matter
jurisdiction for such action.
Section 17. Additional Documents. Each party hereto agrees to execute any
and all further documents and writings within its powers and to perform such
other actions which may be or become necessary or expedient to effectuate and
carry out this Agreement.
18
<PAGE>
Section 18. No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any third-party
beneficiary.
Section 19. No Inconsistent Agreements. None of the parties hereto will
hereafter enter into any agreements with respect to its Ordinary Shares which
are inconsistent with or violate in any material respects the rights granted to
the other parties under this Agreement.
Section 20. Information Regarding Beneficial Ownership. Each Shareholder
agrees to promptly provide to the Company and the other Shareholders any
information or representations that the Company or such other Shareholder may
reasonably request regarding such holder's beneficial ownership of Ordinary
Shares.
Section 21. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same instrument.
Section 22. Definition. As used in this Agreement, "business day" shall
refer to any day which in the City of New York and in the State of Israel is
neither a legal holiday nor a day on which banking institutions are required or
authorized by law or regulation to close.
19
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
By: /s/ Yoel Gat By: /s/ Amiram Levinberg
-------------------------- --------------------------
Name: Yoel Gat Name: Amiram Levinberg
Number of Number of
Ordinary Shares: 204,465 Ordinary Shares: 380,465
By: /s/ Joshua Levinberg By: /s/ Shlomo Tirosh
-------------------------- --------------------------
Name: Joshua Levinberg Name: Shlomo Tirosh
Number of Number of
Ordinary Shares: 94,120 Ordinary Shares: 340,570
By: /s/ Gideon Kaplan
--------------------------
Name: Gideon Kaplan
Number of
Ordinary Shares: 212,795
DIC COMMUNICATION AND PEC ISRAEL ECONOMIC CORPORATION
TECHNOLOGY LTD.
By: /s/ Dov Tadmor By: /s/ William Gold
-------------------------- --------------------------
Name: Dov Tadmor Name: William Gold
Title: Managing Director Title: Treasurer
Number of Number of
Ordinary Shares: 682,418 Ordinary Shares: 746,917
GENERAL ELECTRIC COMPANY
By: /s/ James R. Bunt
--------------------------
Name: James R. Bunt
Title: Vice President and
Treasurer
Number of
Ordinary Shares: 72,496
20
<PAGE>
GE AMERICAN COMMUNICATIONS, INC.
By: /s/ John F. Connelly
-------------------------
Name: John F. Connelly
Title: President and Chief
Executive Officer
Number of
Ordinary Shares: 4,766,621
GENERAL ELECTRIC FINANCE HOLDING GMBH
By: /s/John F. Connelly
-------------------------
Name: John F. Connelly
Title: Attorney-in-Fact
Number of
Ordinary Shares: 152,716
GENERAL ELECTRIC PLASTICS B.V.
By: /s/ John F. Connelly
-------------------------
Name: John F. Connelly
Title: Attorney-in-Fact
Number of
Ordinary Shares: 8,167
21
EXHIBIT 3
NON-TRANSFERABLE CONTINGENT STOCK RIGHT
THIS NON-TRANSFERABLE CONTINGENT STOCK RIGHT ("Right") is entered into as
of December 31, 1998, by and among GE AMERICAN COMMUNICATIONS, INC., a Delaware
corporation ("GE Americom"), GE CAPITAL SPACENET SERVICES, INC., a Delaware
corporation and a wholly owned subsidiary of GE Americom ("Spacenet"), GILAT
SATELLITE NETWORKS LTD., a corporation organized under the laws of Israel
("Gilat"), and JONAH ACQUISITION CORP., a Delaware corporation and a wholly
owned subsidiary of Gilat ("Merger Sub").
WHEREAS, GE Americom, Spacenet, Gilat and Merger Sub have entered into an
Agreement and Plan of Merger dated as of September 25, 1998 ("Merger Agreement")
pursuant to which Merger Sub will be merged with and into Spacenet, pursuant to
and subject to the terms and conditions of the Merger Agreement;
WHEREAS, this Right represents a portion of the consideration being paid by
Gilat for Spacenet and is being delivered by Gilat to GE Americom pursuant to
Section 2.1(b) of the Merger Agreement;
WHEREAS, each capitalized term used herein and not otherwise defined shall
have the meaning set forth in the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the respective
agreements hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I.
POST-CLOSING ADJUSTMENTS
SECTION 1.1. Post-Closing Adjustments.
(a) Closing Balance Sheet. Within 90 days after the Closing Date, GE
Americom shall cause to be prepared and delivered to Gilat an audited
consolidated balance sheet of Spacenet and the Spacenet Subsidiaries (which, for
purposes of this Section 1.1, shall include those entities set forth on Schedule
2.2(a) of the Merger Agreement) as of the Closing Date (the "Closing Audited
Balance Sheet"), which Closing Audited Balance Sheet shall be prepared by GE
Americom in accordance with generally accepted accounting principles, as in
effect in the United States, and substantially in the form of and in a manner
consistent with past practice, and which shall be audited by KPMG Peat Marwick
LLP or such other "Big Five" accounting firm (other than PricewaterhouseCoopers
LLP) as GE Americom shall determine. Together with the Closing Audited Balance
Sheet, GE
1
<PAGE>
Americom shall deliver to Gilat a balance sheet (hereinafter referred to as the
"Adjusted Closing Audited Balance Sheet") which shall be identical to the
Closing Audited Balance Sheet except that it shall be adjusted (w) to exclude
any bad debt reserve or similar reserve with respect to accounts receivable, (x)
to include $2.0 million for the contract referred to in Schedule 2.2(k) of the
Merger Agreement, (y) to exclude the Excluded Balance Sheet Assets (as defined
in Section 1.1(b)) as provided in Section 1.1(b) below and (z) to deduct the
Balance Sheet Liabilities (as defined in Section 1.1(c)) as provided in Section
1.1(c) below (but shall not be adjusted to add any amount for spare parts).
(b) Excluded Assets and Adjusting Liabilities. The following balance
sheet items (collectively, the "Excluded Balance Sheet Assets") shall be
excluded from the Adjusted Closing Audited Balance Sheet:
(i) Any Deferred Tax Asset (as defined in Schedule 2.2 of the
Merger Agreement);
(ii) Any goodwill asset other than the AB Goodwill (as defined in
Schedule 2.2 of the Merger Agreement);
(iii) Any TR Inventory (as defined in Schedule 2.2 of the Merger
Agreement) in excess of $5.5 million;
(iv) Any TR Fixed Assets (as defined in Schedule 2.2 of the
Merger Agreement) in excess of $8 million;
(v) Any TS Prepaid and Long Term Assets (as defined in Schedule
2.2 of the Merger Agreement); and
(vi) Any Spacenet Intercompany Receivables (as defined in
Schedule 2.2 of the Merger Agreement); and
(vii) An amount of $3.0 million.
(c) Balance Sheet Liabilities. The following balance sheet items
(collectively, the "Balance Sheet Liabilities") shall be deducted from the
Adjusted Closing Audited Balance Sheet:
(i) $500,000;
(ii) Any TS/CL Liabilities (as defined in Schedule 2.2 of the
Merger Agreement) in excess of $2.5 million; and
(iii) Any Spacenet Intercompany Payables (as defined in Schedule
2.2 of the Merger Agreement).
2
<PAGE>
(d) Resolution of Objections. If Gilat or its representatives shall
have any objections to the Adjusted Closing Audited Balance Sheet, Gilat shall
deliver a written notice describing such objections to GE Americom within 60
days after receiving the Adjusted Closing Audited Balance Sheet. Gilat and GE
Americom (by themselves or through their respective representatives) will use
their reasonable best efforts to engage in good-faith negotiations to resolve
any such objections promptly after receipt by GE Americom of such notice.
If a final resolution is not obtained promptly after GE Americom first
receives notice of Gilat's objections to the Adjusted Closing Audited Balance
Sheet, the parties shall submit their disagreement to Deloitte & Touche LLP or
such other "Big Five" accounting firm (other than KPMG Peat Marwick LLP or
PricewaterhouseCoopers LLP) as GE Americom and Gilat may agree upon (the
"Independent Third Party") for resolution. The Independent Third Party, acting
as experts and not as arbitrators, upon a review of the Adjusted Closing Audited
Balance Sheet and consideration of the written objections thereto, shall resolve
any such remaining objections and revise the Adjusted Closing Audited Balance
Sheet (as agreed to by GE Americom and Gilat or as revised following resolution
by the Independent Third Party, the "Final Adjusted Closing Audited Balance
Sheet"), determine the Consideration Adjustment (as defined in Section 1.1(e)),
if any, and communicate the foregoing to Gilat and GE Americom in writing, not
later than 30 days following the submission of such dispute to the Independent
Third Party (unless Gilat and GE Americom agree, upon request of the Independent
Third Party, to provide the Independent Third Party with additional time to make
its determination, which agreement shall not be unreasonably withheld).
(e) Consideration Adjustment. In the event that the net assets,
calculated by subtracting total net liabilities from total net assets on the
Final Adjusted Closing Audited Balance Sheet (the "Net Assets"), shall be equal
to or greater than Eighty-Five Million U.S. Dollars ($85,000,000) (the "Required
Amount"), Gilat shall, within six months after the Closing Date (if possible)
and in any event promptly after final determination of the Net Asset amount
(either by agreement of Gilat and GE Americom or the determination of the
Independent Third Party), issue and deliver to GE Americom such number of Gilat
Ordinary Shares as is equal in value to the amount by which Net Assets exceeds
the Required Amount (the "Consideration Adjustment"), with each Gilat Ordinary
Share being deemed to have a value equal to (a) if the average closing price of
the Gilat Ordinary Shares on the Nasdaq Stock Market for the five consecutive
trading days immediately preceding the date of determination is more than 10%
higher or more than 10% lower, as the case may be, than $41.3816 (the
"Determination Price"), then such average closing price, or (b) if such average
closing price is within 10% of $41.3816, then $41.3816. For the avoidance of
doubt, in order to calculate the Net Assets, Gilat and GE Americom agree that
any Spacenet inventory resulting from the equipment purchases referred to in
paragraph (1) of Schedule 6.19 of the Merger Agreement and paid for prior to
Closing shall be included in computing Net
3
<PAGE>
Assets; any inventory that is not paid for, and any payable associated
therewith, shall be excluded in computing Net Assets.
(f) Utilization of Deferred Tax Asset. For the period following the
Closing through the fifth anniversary thereof, to the extent that the Surviving
Corporation and the Spacenet Subsidiaries, on a consolidated basis, have pre-tax
gross income in any calendar year, Gilat shall within 45 days after the end of
each such calendar year notify GE Americom in writing of the amount of the
pre-tax gross income and the amount of U.S. corporate income tax the Surviving
Corporation would have paid if such pre-tax gross income had constituted taxable
income to the Surviving Corporation for such calendar year ("Post-Closing Tax
Savings"). Within 10 days of receipt of such notice, Gilat shall issue to GE
Americom a number of Gilat Ordinary Shares equal to the amount of the
Post-Closing Tax Savings divided by the Determination Price. Notwithstanding the
foregoing, Gilat shall not be obligated to issue any Gilat Ordinary Shares to GE
Americom to the extent that the aggregate amount of Post-Closing Tax Savings
exceeds the lesser of the Deferred Tax Asset and $2 million.
(g) Determinations of Independent Third Party. The determinations of
the Independent Third Party shall for all purposes (including without limitation
purposes of Section 1.3(b)) be conclusive, final and non-appealable, shall not
be subject to judicial review under any circumstances and shall be binding on
Gilat and GE Americom and their respective affiliates. Each of Gilat and GE
Americom and their respective affiliates hereby waive the right to appeal any
decision of the Independent Third Party, whether to a court of law or otherwise,
or to seek to stay or vacate any determination of the Independent Third Party.
The fees and expenses of the Independent Third Party incurred in the resolution
of such objections shall be shared equally by Gilat and GE Americom. In all
cases, Gilat and GE Americom each shall provide each other, their respective
representatives and the Independent Third Party full reasonable access to the
books and records, any other information, including work papers of its
accountants, and to any employees to the extent necessary for the preparation of
all financial statements referred to in this Section 1.1.
(h) Issuances in Lieu of Cash. To the extent that the amount of any
cash that GE Americom has a right to receive pursuant to the Merger Agreement is
reduced pursuant to Section 2.4 of the Merger Agreement, GE Americom shall be
entitled under this Right to receive from Gilat a number of Gilat Ordinary
Shares with a value that is equal to the amount by which such cash is reduced
(with each Gilat Ordinary Share being deemed to have a value equal to the
Determination Price).
4
<PAGE>
SECTION 1.2. CERTAIN RESTRICTIONS.
(a) Until the time Gilat Ordinary Shares are issued under this Right,
dividends will not accrue on and GE Americom will not be entitled to any
dividends on the Gilat Ordinary Shares which may be issued under this Right, and
GE Americom will not be entitled to exercise any voting rights of such shares.
(b) The maximum number of Gilat Ordinary Shares to be issued purant to
this Right shall not exceed the lesser of (i) Three Million (3,000,000) Gilat
Ordinary Shares or (ii) the number of Gilat Shares issued to GE Americom
pursuant to Section 2.1(b) of the Merger Agreement minus one.
(c) All Gilat Ordinary Shares to be issued pursuant to this Right
shall be issued within five (5) years from the Closing Date.
(d) In no event shall GE Americom be entitled to receive any cash or
property other than Gilat Ordinary Shares pursuant to this Right.
SECTION 1.3. CERTAIN ADJUSTMENTS.
(a) If between the date hereof and the time at which Gilat is required
to deliver Gilat Ordinary Shares to GE Americom pursuant to this Right, the
outstanding Gilat Ordinary Shares shall be changed into a different number of
shares by reason of any reclassification, recapitalization, split-up,
combination or exchange of shares, or any dividend payable in shares or other
securities shall be declared thereon with a record date within such period, the
number of Gilat Ordinary Shares to be delivered to GE Americom pursuant to this
Right shall be adjusted accordingly to provide to GE Americom the same economic
effect as contemplated by this Right prior to such reclassification,
recapitalization, split-up, combination, exchange or dividend.
(b) If between the date hereof and the time at which Gilat is required
to deliver Gilat Ordinary Shares to GE Americom pursuant to this Right, Gilat
agrees to sell all or substantially all of its assets or agrees to any merger,
consolidation, reorganization, division or other corporate transaction in which
Gilat Ordinary Shares are converted into another security or into the right to
receive securities or property, Gilat and GE Americom agree that any Gilat
Ordinary Shares to be issued under this Right shall be issued prior to such
conversion. GE Americom and Gilat shall engage in good faith negotiations to
determine the number of Gilat Ordinary Shares to be issued. If GE Americom and
Gilat are unable to promptly resolve such determination, the parties shall
submit their disagreement to the Independent Third Party for prompt resolution.
Such issuance of Gilat Ordinary Shares shall be in full satisfaction of Gilat's
obligation to issue Gilat Ordinary Shares pursuant to this Right.
5
<PAGE>
ARTICLE II.
GENERAL PROVISIONS
SECTION 2.1. NOTICES.
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered, mailed or transmitted, and shall be effective upon receipt,
if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address) or sent by electronic transmission to the telecopier number specified
below:
(A) If to GE Americom or Spacenet:
GE American Communications, Inc.
Four Research Way
Princeton, NJ 08540-6684
Telecopier No.: (609) 987-4381
Attention: John Dimarco
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telecopier No.: (202) 637-5910
ATTENTION: Peter A. Rohrbach, Esq.
(B) If to Gilat or Merger Sub:
Gilat Satellite Networks Ltd.
Yegia Kapayim St., Kiryat Arye
Petah Tikva 49130
Israel
Telecopier No.: (972) 3-921-3321
Attention: Yoav Leibovitch
6
<PAGE>
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) TO:
Kleinhendler & HaLevy
Law Offices
30 Kalisher Street
Tel-Aviv 65257
Israel
Telecopier No.: (972)3-510-7528
Attention: Gene Kleinhendler, Esq.
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, N.Y. 10022
Telecopier No.: (212) 735-2000
Attention: Hildy Shandell, Esq.
SECTION 2.2. HEADINGS.
The headings contained in this Right are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Right.
SECTION 2.3. SEVERABILITY.
If any term or other provision of this Right is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Right shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Right so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 2.4. ENTIRE AGREEMENT.
This Right (together with the Merger Agreement and the Exhibits, the
Schedules and the other documents delivered pursuant hereto and thereto) and the
Confidentiality Agreement constitute the entire agreement of the parties and
supersede any prior agreements and undertakings, both written and oral, between
the parties, or any of them, with respect to the subject matter hereof and,
except as otherwise expressly provided herein, are not intended to confer upon
any other person any rights or remedies hereunder.
7
<PAGE>
SECTION 2.5. SPECIFIC PERFORMANCE.
The transactions contemplated by this Right are unique. accordingly,
each of the parties acknowledges and agrees that, in addition to all other
remedies to which it may be entitled, each of the parties hereto is entitled to
a decree of specific performance, provided such party is not in material default
hereunder.
SECTION 2.6. ASSIGNMENT.
Neither this Right nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise). this Right shall be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
SECTION 2.7. THIRD PARTY BENEFICIARIES.
This Right shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Right, express or implied, is intended to
or shall confer upon any other person any Right, benefit or remedy of any nature
whatsoever under or by reason of this right.
SECTION 2.8. GOVERNING LAW.
Except as otherwise provided herein, this Right shall be governed by,
and construed in accordance with, the laws of the State of New York, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law.
SECTION 2.9. COUNTERPARTS.
This Right may be executed and delivered in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
8
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this Right
to be executed and delivered on its behalf as of the date first written above.
GE AMERICAN COMMUNICATIONS, INC.
By: /s/ John F. Connelly
---------------------------
Name: John F. Connelly
Title: President and Chief
Executive Officer
GE CAPITAL SPACENET SERVICES, INC.
By: /s/ Gino O. Picasso
----------------------------
Name: Gino O. Picasso
Title: President
GILAT SATELLITE NETWORKS LTD.
By: /s/ Yoel Gat
------------------------------
Name: Yoel Gat
Title: Chief Executive Officer
JONAH ACQUISITION CORPORATION
By: /s/ Yoav Leibovitch
-------------------------------
Name: Yoav Leibovitch
Title: Vice President, Chief Financial
Officer and Secretary
9
EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 31, 1998 (the
"Agreement"), among Gilat Satellite Networks Ltd., a corporation formed under
the laws of the State of Israel (the "Company"), General Electric Company, a
corporation incorporated under the laws of the State of New York ("GE Parent"),
GE American Communications, Inc., a corporation incorporated under the laws of
the State of Delaware ("GE Americom"), General Electric Finance Holding GmbH, a
corporation formed under the laws of Germany ("GmbH"), and General Electric
Plastics B.V., a corporation formed under the laws of the Netherlands ("BV,"
and, collectively with GE Parent, GMBH and GE Americom, "GE").
1. Introduction. The parties hereto are parties to (i) the separate
Agreement and Plan of Merger (the "US Merger Agreement"), dated September 25,
1998, with GE Americom, GE Capital Spacenet Services, Inc. ("Spacenet"), the
Company and Jonah Acquisition Corp., (ii) the separate Stock Purchase Agreement
(the "GMBH Agreement"), dated September 25, 1998, by and between GmbH and the
Company, (iii) the separate Stock Purchase Agreement (the "BV Agreement," and,
together with the GMBH Agreement and the US Merger Agreement, collectively, the
"Merger Agreement"), dated September 25, 1998, by and between BV and the
Company, respectively, pursuant to which the Company has agreed, among other
things, to issue 4,927,504 shares (the "Merger Shares") of its Ordinary Shares,
par value NIS 0.01 per share (the "Ordinary Shares"), to GE and (iv) the
separate Trademark Agreement, dated December 31, 1998 (the "Trademark
Agreement"), among GE Parent, Spacenet and the Company, pursuant to which the
Company has agreed among other things, to issue 72,496 Ordinary Shares (the
"Trademark Shares," and, together with the Merger Shares and any Contingent
Shares (as defined below), the "GE Shares") to GE Parent. This Agreement shall
become effective upon the issuance of such securities to GE pursuant to the
Merger Agreement and to GE Parent pursuant to the Trademark Agreement.
Concurrently with the execution hereof, GE is entering into a Shareholders'
Agreement with certain other shareholders of the Company (the "Shareholders
Agreement") with respect to the Ordinary Shares owned by it. Certain capitalized
terms used in this Agreement are defined in Section 2 hereof; unless otherwise
stated, references to sections shall be to sections of this Agreement.
2. Definitions. For the purposes of this Agreement:
(1) The term "Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly controls, or is controlled by or under
common control with the first such Person. For the purpose of this definition,
"control" (including the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
<PAGE>
management or policies of such Person, whether through the ownership of voting
securities or by contract or agency or otherwise.
(2) The term "Bulk Transferee" means any Person other than GE or any
of its Affiliates who is at such time a holder of GE Shares representing at
least 5% of the then outstanding Ordinary Shares, provided that (x) the transfer
of such GE Shares to, and the holding of such shares by, such Bulk Transferee
complies in all respects with the applicable terms of the Shareholders Agreement
and (y) such Bulk Transferee executes an instrument, in form and substance
reasonably satisfactory to the Company, pursuant to which it agrees to be bound
by the terms of this Agreement as if named as a party herein.
(3) The term "Holder" means a holder of Registrable Securities or,
unless the context otherwise requires, securities convertible into or
exercisable for Registrable Securities; provided that no Person shall be a
Holder for the purposes of this Agreement unless (i) such Person is GE or an
Affiliate of GE or a Bulk Transferee and (b) any transfer to, and the holding
by, such Person of such Registrable Securities are in compliance with the terms
of the Shareholders Agreement.
(4) The term "Person" shall mean an individual or a corporation,
association, partnership, limited liability company, joint venture,
organization, business, trust or any other entity or organization, including a
government or any subdivision or agency thereof, and shall include any successor
(by merger or otherwise) of such entity.
(5) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement.
(6) The term "Registrable Securities" means any GE Shares issued
pursuant to the Merger Agreement and the Trademark Agreement or pursuant to the
Non-Transferable Contingent Stock Right described in Section 2.1 of the Merger
Agreement (any shares issued under such Non-Transferable Contingent Stock Right
being referred to herein as "Contingent Shares") and, in each case, held by GE
or any of its Affiliates or any Bulk Transferee (and any and all shares of
capital stock of the Company or any successor or assign of the Company (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for such GE Shares or Contingent
Shares, by combination, recapitalization, reclassification, dividend, merger,
consolidation or otherwise); provided, however, that Registrable Securities
shall cease to be Registrable Securities when and to the extent that (i) such
Registrable Securities have been sold pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from the
2
<PAGE>
registration requirements thereof (other than pursuant to the "First Immediate
Registration Statement" or an "Additional Registration Statement" as
contemplated by Section 3.1(1)), (ii) such Registrable Securities have become
eligible for resale pursuant to Rule 144(k) of the Securities Act (or any
similar provision then in force) or (iii) such Registrable Securities have
ceased to be outstanding.
(7) The term "Securities Act" shall mean the Securities Act of 1933,
as amended, or any successor statute.
(8) The term "Underwritten Offering" shall mean a firm commitment
public offering through a nationally recognized underwriter.
3. Registration under Securities Act, etc.
3.1 Immediate, Contingent, Initial and Tax Demand Registrations
(1) Immediate Registration. The Company shall use its reasonable best
efforts to prepare and cause to be filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-3 or any other
applicable short-form registration statement relating to the sale by the Holders
of all Registrable Securities (the "First Immediate Registration Statement"),
which First Immediate Registration Statement shall be filed at such time as GE
and the Company reasonably agree will allow the Company in using its reasonable
best efforts to cause such First Immediate Registration Statement to be declared
effective by the Commission on the Closing Date or as soon as reasonably
practicable thereafter. The Company shall promptly notify GE of such
effectiveness. The Company shall keep such First Immediate Registration
Statement effective until the Holders, using all reasonable practical and
diligent efforts, are able to effect the transfer of their Registrable
Securities to certain of their Affiliates. The Company shall reasonably
cooperate with the Holders in enabling them to effect such transfers, which
transfers shall (a) solely be made to one or more Affiliates of GE and (b)
comply in all respects with the terms of the Shareholders Agreement. GE shall
immediately notify the Company of the completion of the relevant transfers. The
Company shall have the right to withdraw the effectiveness of the First
Immediate Registration Statement (x) at any time from and after receipt of the
notification described in the preceding sentence from GE and (y) at any time
(following notice from the Company to GE of the effectiveness of the First
Immediate Registration Statement) that the Holders are not using all reasonable
practical and diligent efforts to effect the transfer of their Registrable
Securities (provided that GE shall be deemed not to be using all reasonable
practical and diligent efforts to effect such transfer if, without limitation,
GE shall not have sent its written request to the transfer agent with respect to
the transfer of the Registrable Securities and taken all such other steps
reasonably in its control in order to effect the transfer of Registrable
Securities within ten (10) business days of being notified by the Company of the
3
<PAGE>
effectiveness of the First Immediate Registration Statement). If following the
date hereof (i) the Company issues or proposes to issue Contingent Shares to any
of the Holders or (ii) GE's counsel advises GE that it is reasonably necessary
or advisable for GE Parties to register additional transfers ("Counsel
Recommended Transfers") solely among GE and its Affiliates in addition to the
First Immediate Registration Statement and GE so notifies the Company in writing
(attaching a copy of the advice from counsel), the Company shall (subject to
Section 3.4 below) reasonably promptly file up to one (and not more than one)
additional registration statement with respect to Contingent Shares and such
registration statements as are necessary to register the Counsel Recommended
Transfers, in each case on Form F-3 or any other applicable short-form
registration statement (an "Additional Immediate Registration Statement," and,
together with the First Immediate Registration Statement, an "Immediate
Registration Statement") at such time as reasonably designated by written notice
to the Company from any GE party and use its reasonable best efforts to cause
such Additional Immediate Registration Statement to be declared effective by the
Commission as soon as reasonably practicable thereafter; provided, however, to
the extent that the First Immediate Registration Statement is still effective at
such time, the Company may use such First Immediate Registration Statement, as
amended or supplemented, to fulfill its obligations with respect to the filing
of an Additional Immediate Registration Statement. All of the procedures, rights
and obligations set forth herein with respect to the First Immediate
Registration Statement shall then apply with respect to such Additional
Immediate Registration Statement. Notwithstanding anything herein to the
contrary, in connection with any Immediate Registration Statement, (q) all
reasonable costs and expenses incurred in connection with any registration,
filing and offering of Registrable Securities pursuant to this Section 3.1(1),
including (without limitation) all reasonable registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company and all reasonable costs incurred in connection with the
preparation of the Immediate Registration Statement, shall be paid and borne by
GE and GE shall promptly reimburse the Company for any such costs or expenses
incurred by the Company or any of its Affiliates and (r) all sections of the
Immediate Registration Statement relating to the transfer of securities
thereunder, including any "plan of distribution" or similar section and any
section relating to the selling shareholders, shall be prepared by GE; provided,
however, that if any securities other than Registrable Securities are registered
on any Immediate Registration Statement, a pro rata share of all costs shall be
allocated to such other securities and shall not be the responsibility of GE.
(2) Contingent Demand Registration Request. If Gilat is in breach of
any of its representations, warranties and consents set forth in the Merger
Agreement, which breach is likely to result in a Jonah Material Adverse Effect
(as defined in the Merger Agreement), upon receipt of a written request from GE
(the "Contingent Demand Notice"), the Company shall use its reasonable best
efforts to prepare and cause to be filed with the Commission as soon as
reasonably
4
<PAGE>
practicable after receipt of such notice a registration statement relating to
the offer and sale by Holders of Registrable Securities (the "Contingent Demand
Shares") for which registration is requested in the Contingent Demand Notice
(the "Contingent Demand Registration Statement"). The Contingent Demand
Registration Statement will be a Short-Form Registration (as defined below)
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement (provided, however, that to the extent that a
Contingent Demand Registration is to be effected pursuant to an Underwritten
Offering, the Company shall include in the Short-Form Registration any
additional disclosure as reasonably requested by the managing underwriters
(which additional disclosure is reasonably customary in the reasonable opinion
of such managing underwriters to be included in underwritten offerings by
similarly situated companies)). The Contingent Demand Notice shall specify in
writing such number of Registrable Securities that the Holders request be
included in the Contingent Demand Registration Statement and the intended method
of distribution of such Registrable Securities (which method of distribution may
include an Underwritten Offering). If the first Contingent Demand Registration
Statement does not result in the disposition of all of the Contingent Demand
Shares, Gilat shall file additional Contingent Demand Registration Statements
until all of the Contingent Demand Shares have been sold. Notwithstanding the
foregoing, the Company shall not be required to effect: (i) any registration if
the Contingent Demand Shares that the Company shall have been requested to
register shall, as of the date of the request, represent less than one percent
(1%) of the outstanding Ordinary Shares; (ii) any registration if the
Registrable Securities that the Company shall have been requested to register
shall, as of the date of the request, have a Market Value (as defined below) of
less than $30 million or represent all of the Ordinary Shares then held in the
aggregate by the GE Parties; or (iii) any registration during the pendency of
any Blackout Period (as hereinafter defined). A registration of Registrable
Securities under this Section 3.1(2) is referred to herein as a "Contingent
Demand Registration". The Company shall use its reasonable best efforts to cause
such Contingent Demand Registration Statement to be declared effective by the
Commission as soon as reasonably practicable after the filing thereof.
(3) Initial Demand Registration Requests. From and after the date on
which the Company releases to the general public its year-end financial results
for the year ended December 31, 1999, upon receipt of each written request from
GE (the "Initial Demand Notice"), the Company shall use its reasonable best
efforts to prepare and cause to be filed with the Commission a registration
statement relating to the offer and sale by Holders of Registrable Securities of
up to such number of Registrable Securities (the "Initial Demand Shares"), the
sale of all of which Initial Demand Shares by such Holders will result in the GE
Shares then held by GE and its Affiliates representing not less than 15% of the
outstanding Ordinary Shares on such date as the Initial Demand Notice is
received by the Company (each, an "Initial Demand Registration Statement"). The
first Initial Demand Registration Statement shall be on Form F-1 or any similar
long-form registration ("Long-Form Registrations"); provided, however, that to
the extent agreed to in writing by GE, the first Initial
5
<PAGE>
Demand Registration Statement may be a registration statement on Form F-2 or F-3
or any similar short-form registration (a "Short-Form Registration") whenever
the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement. Each subsequent Initial Demand Registration
Statements will be a Short-Form Registration whenever the Company is permitted
to use Form F-2 or F-3 or any other applicable short-form registration statement
(provided, however, that to the extent that an Initial Demand Registration
Statement relates to an Underwritten Offering, the Company shall include in the
Short-Form Registration any additional disclosure as reasonably requested by the
managing underwriters (which additional disclosure is reasonably customary in
the reasonable opinion of such managing underwriters to be included in
underwritten offerings by similarly situated companies)). Subject to the
limitations set forth in this Section, the Initial Demand Notice shall specify
such number of Registrable Securities that the Holders request be included in
the Initial Demand Registration Statement. Such Initial Demand Notice shall
specify in writing the intended method of distribution of such Registrable
Securities (which method of distribution may include an Underwritten Offering).
Notwithstanding the foregoing, the Company shall not be required to effect: (i)
any registration if the Initial Demand Shares that the Company shall have been
requested to register shall, as of the date of the request, represent less than
one percent (1%) of the outstanding Ordinary Shares; (ii) any registration if
the Registrable Securities that the Company shall have been requested to
register shall, as of the date of the request, have a Market Value (as defined
below) of less than $30 million or represent all of the Ordinary Shares then
held in the aggregate by the GE Parties; or (iii) any registration during the
pendency of any Blackout Period (as hereinafter defined). A registration of
Registrable Securities under this Section 3.1(3) is referred to herein as an
"Initial Demand Registration". The Company shall use its reasonable best efforts
to cause each Initial Demand Registration Statement to be declared effective by
the Commission as soon as reasonably practicable after the filing thereof.
Notwithstanding anything herein to the contrary, in connection with any Initial
Demand Registration Statement after the first Initial Demand Registration
Statement, all reasonable costs and expenses incurred in connection with any
registration, filing and offering of Registrable Securities pursuant to this
Section 3.1(3), including (without limitation) all reasonable registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and all reasonable costs incurred in
connection with the preparation of the Immediate Registration Statement, shall
be paid and borne by GE and GE shall promptly reimburse the Company for any such
costs or expenses incurred by the Company or any of its Affiliates; provided,
however, that if any securities other than Registrable Securities are registered
on any Initial Demand Registration Statement, a pro rata share of all costs
shall be allocated to such other securities and shall not be the responsibility
of GE.
6
<PAGE>
(4) Tax Demand Registration Request. If at any time GE becomes
entitled to the registration rights set forth in Section 16(c) of the Tax
Matters Agreement (the "Tax Agreement"), dated as of September 25, 1998, among
GE Americom, the Company, Spacenet and the Spacenet Subsidiaries (as defined in
the Tax Agreement), then upon receipt of a written request from GE (the "Tax
Demand Notice"), the Company shall (subject to Section 3.4 below) use its
reasonable best efforts to prepare and cause to be filed with the Commission a
registration statement (the "Tax Demand Registration Statement") relating to the
offer and sale by Holders of solely up to such number of Registrable Securities
(the "Tax Demand Shares"), the sale of all of which Tax Demand Shares by such
Holders will reasonably be expected in the opinion of a nationally-recognized
investment bank (which may be the managing underwriter) to result in net
proceeds to the Holders in an amount sufficient to pay (x) any Tax (as defined
in the Tax Agreement) pursuant to Section 367 of the Code (as defined in the Tax
Agreement) (including, pursuant to the GE Americom GRA (as defined in the Tax
Agreement)) or Section 368 of the Code to which GE may be subject as a result of
the circumstances described in such Section 16(c) and (y) any Tax paid by GE to
any Taxing Authority (as defined in the Tax Agreement) in connection with or
relating to any sale by GE of such Tax Demand Shares (a "Tax Demand
Registration"). Tax Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement (provided, however, that to the extent that a
Tax Demand Registration is to be effected pursuant to an Underwritten Offering,
the Company shall include in the Short-Form Registration any additional
disclosure as reasonably requested by the managing underwriters (which
additional disclosure is reasonably customary in the reasonable opinion of such
managing underwriters to be included in underwritten offerings by similarly
situated companies; and, provided, further, that the Company shall only be
required to include such additional disclosure to the extent that the inclusion
of such additional disclosure does not require unreasonable investments of time
by management of the Company). Subject to the limitations set forth in the
second preceding sentence, the Tax Demand Notice shall specify such number of
Registrable Securities that the Holders request be included in the Tax Demand
Registration Statement. Notwithstanding the foregoing, the Company shall not be
required to effect: (i) any registration if the Tax Demand Shares that the
Company shall have been requested to register shall, as of the date of the
request, represent less than one percent (1%) of the outstanding Ordinary Shares
or (ii) more than one Tax Demand Registration Statement for all Holders; and the
Company shall be entitled to delay any Tax Demand Registration during the
pendency of any Blackout Period (as hereinafter defined). The Company shall use
its reasonable best efforts to cause such Tax Demand Registration Statement to
be declared effective by the Commission as soon as reasonably practicable after
the filing thereof. Notwithstanding anything herein to the contrary, in
connection with any Tax Demand Registration Statement, (q) all reasonable costs
and expenses incurred in connection with any registration, filing and offering
of Registrable Securities pursuant to this Section 3.1(4), including (without
limitation) all
7
<PAGE>
reasonable registration, filing and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company and all reasonable costs
incurred in connection with the preparation of the Tax Demand Registration
Statement, shall be paid and borne by GE and GE shall promptly reimburse the
Company for any such costs or expenses incurred by the Company or any of its
Affiliates and (r) all sections of the Tax Demand Registration Statement
relating to the transfer of securities thereunder, including any "plan of
distribution" or similar section and any section relating to the selling
shareholders, shall be prepared by GE; provided, however, that if any securities
other than Registrable Securities are registered on any Tax Demand Registration
Statement, a pro rata share of all costs shall be allocated to such other
securities and shall not be the responsibility of GE.
3.2 Registration Upon Demand
(1) At any time after the third anniversary of this Agreement, each of
one or more Holders of Registrable Securities may make a written demand (an
"Ordinary Demand Notice") that the Company file with the Commission a
registration statement to effect the registration (an "Ordinary Demand
Registration," and collectively with an Initial Demand Registration, a
Contingent Demand Registration and a Tax Demand Registration, each a "Demand
Registration") of all or part of such Holders' Registrable Securities (as
applicable, an "Ordinary Demand Registration Statement," and collectively with
any Initial Demand Registration Statement, a Contingent Demand Registration
Statement and a Tax Demand Registration Statement, each a "Demand Registration
Statement"). Ordinary Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use Form F-2 or F-3 or any other applicable
short-form registration statement; provided, however, that to the extent that an
Ordinary Demand Registration is to be effected pursuant to an Underwritten
Offering, the Company shall include in the Short-Form Registration any
additional disclosure as reasonably requested by the managing underwriters
(which additional disclosure is reasonably customary in the reasonable opinion
of such managing underwriters to be included in underwritten offerings by
similarly situated companies); and, provided, further, that following the first
two Ordinary Demand Registrations to be effected pursuant to an Underwritten
Offering, the Company shall only be required to include such additional
disclosure to the extent that the Holders of the relevant Registrable Securities
bear and pay all reasonable costs and expenses incurred in connection with such
registration, filing and offering of Registrable Securities pursuant to this
Section 3.2(1), including (without limitation) all reasonable registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and all reasonable costs incurred in
connection with the preparation of such Ordinary Demand Registration Statement.
Such Ordinary Demand Notice shall specify in writing the intended method of
distribution of such Registrable Securities (which method of distribution may
include an Underwritten Offering). Upon receipt of a valid Ordinary Demand
Notice for an Ordinary Demand Registration, the Company shall use its reasonable
8
<PAGE>
best efforts to register under the Securities Act as soon as reasonably
practicable the Registrable Securities which Holders have requested the Company
to register in accordance with this Section 3.2, all to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered. Notwithstanding
the foregoing, the Company shall not be required to effect: (i) any registration
if the Registrable Securities that the Company shall have been requested to
register shall, as of the date of the request, have a Market Value (as defined
below) of less than $30 million or represent all of the Ordinary Shares then
held in the aggregate by the GE Parties; or (ii) any registration during the
pendency of any Blackout Period. For purposes of this Agreement, "Market Price"
shall mean the average of the closing price for the Ordinary Shares on the
principal securities exchange or other market on which the Ordinary Shares are
then traded or quoted for the ten trading days preceding the date of the
Ordinary Demand Notice.
(2) Notwithstanding anything to the contrary in this Agreement, the
Company shall not be required to file a Demand Registration Statement relating
to any Holder's request under Section 3.1(2), 3.1(3), 3.1(4) or 3.2(1) if the
Company has commenced the preparation of, or is in the midst of, an offering of
any securities of the Company pursuant to a registration statement under the
Securities Act or in reliance on Rule 144A or any similar exemption from the
registration requirements of the Securities Act. Any participation of the GE
Parties in any such offering shall be solely on a piggy-back basis pursuant to
the terms of Section 3.3 hereof and not on a demand basis under Section 3.1(2),
Section 3.1(3), Section 3.1(4) or Section 3.2(1).
(3) A registration requested pursuant to Section 3.1(2), 3.1(3),
3.1(4) or 3.2(1) hereof shall not be deemed to have been effected (i) if a
Demand Registration Statement with respect thereto has not been declared
effective by the Commission, (ii) if after it has become effective, such
registration is materially interfered with by any stop order, injunction or
similar order or requirement of the Commission or other governmental agency or
court for any reason not attributable to any of the Holders and has not
thereafter become effective, or (iii) the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of a Holder.
(4) Subject to Section 3.8 below, the Company may, at its option,
allow other persons or entities having registration rights to include their
Ordinary Shares, or elect to include authorized but unissued Ordinary Shares to
be sold by the Company, in a registration to be effected pursuant to Section
3.1(1), 3.1(2), 3.1(3), 3.1(4) or 3.2(1).
9
<PAGE>
3.3 "Piggy-Back" Registrations
1. If, at any time after the earlier to occur of (x) the third
anniversary of this Agreement and (y) the termination of the obligations of the
GE Parties (as defined in the Shareholders Agreement) under clause (1) of
Section 3.1 of the Shareholders Agreement in accordance with the terms of such
Section 3.1, the Company proposes to register any securities under the
Securities Act in connection with any offering of its securities (other than a
registration statement on Form S-8 or Form F-4, or their successors, or any
other form for a similar limited purpose, or any registration statement covering
only securities proposed to be issued in exchange for securities or assets of
another corporation or in connection with any similar transaction), whether or
not for its own account, the Company shall furnish reasonably prompt written
notice to GE and any Bulk Transferees (provided that GE has notified the Company
of such Person's status as a Bulk Transferee) of its intention to effect such
registration and the intended method of distribution in connection therewith.
Upon the written request of a Holder made to the Company within five (5)
calendar days after the receipt of such notice by the Company, the Company shall
include in such registration the requested number of the Holder's Registrable
Securities (each, a "Piggy-Back Registration"); provided, however, that:
a. if, at any time after giving such written notice of its
intention to register any securities and prior to the effective date
of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable
Securities who shall have made a request for registration as
hereinabove provided and thereupon the Company shall be relieved of
its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
expenses in connection therewith, as provided in Section 3.7); and
b. if such registration involves an Underwritten Offering, all
Holders of Registrable Securities requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected by the Company on the same terms and conditions
as apply to the Company or any other holders of Ordinary Shares being
sold pursuant to such registration.
2. Nothing in this Section 3.3 shall create any liability on the part
of the Company or any other Person to the Holders if the Company or any other
Person should, for any reason, decide not to file a registration statement
proposed to be filed pursuant to Section 3.3(1) (any such registration
statement, a "Piggy-Back Registration Statement," and, collectively with a
Demand Registration Statement and an Immediate Registration Statement, each a
"Registration
10
<PAGE>
Statement") or to withdraw such Piggy-Back Registration Statement subsequent to
its filing (except for the Company's obligation to pay the expenses in
connection therewith as provided in Section 3.7), regardless of any action
whatsoever that a Holder may have taken, whether as a result of the issuance by
the Company of any notice under Section 3.3(1) or otherwise.
3. A request to include Registrable Securities in a proposed
Underwritten Offering pursuant to Section 3.3(1) shall not be deemed to be a
Demand Registration pursuant to Section 3.1(2) or Section 3.1(3).
3.4 Blackout Periods for Holders. If the Company reasonably and in good
faith determines that (i) the filing of a Registration Statement or the
compliance by the Company with its disclosure obligations in connection with a
Registration Statement would require the disclosure of material information that
the Company has a bona fide and significant business purpose for preserving as
confidential or (ii) such registration would be likely to have a significant and
adverse effect on any proposal or plan by the Company to engage in any material
financing transaction, acquisition of securities or assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction and the Company promptly gives the Holders written notice of
such determination following their request to register any Registrable
Securities, the Company may delay the filing of a Registration Statement and
shall not be required to maintain the effectiveness thereof or amend or
supplement a Registration Statement for a period expiring upon the earlier to
occur of (A) the date on which such material information is disclosed to the
public or ceases to be material, in the case of clause (i), (B) the date on
which such transaction is completed or abandoned, in the case of clause (ii), or
(C) sixty (60) calendar days after the Company makes such good faith
determination, in the case of either clauses (i) or (ii) (a "Blackout Period");
provided, that (x) during any period of three hundred and sixty-five (365)
consecutive days the aggregate length of all Blackout Periods may not exceed a
total of one hundred and eighty (180) days and (y) if any such event occurs
prior to the effectiveness of the relevant Registration Statement, the Holders
of Registrable Securities, if any, initiating the request for such registration
will be entitled to withdraw such request, and if such request is withdrawn such
registration will not count as one of the permitted registrations under Section
3.1 or 3.2, as applicable. The period referred to in Section 3.5(1) shall be
extended by the length of any Blackout Period occurring during such periods. The
Company shall promptly notify each Holder of the commencement and expiration or
earlier termination of any Blackout Period occurring during the pendency of any
registration hereunder in which such Holder is participating.
3.5 Obligations of the Company. Except as otherwise provided herein
(including, but not limited to, pursuant to Section 3.1(1), Section 3.1(3) and
Section 3.1(4) above), whenever the Company is required to effect the
registration of any
11
<PAGE>
Registrable Securities under Section 3.1, 3.2 or 3.3, as applicable, the Company
shall, as soon as reasonably practicable:
1. Prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities on a form selected by the Company (except
as otherwise set forth above) and use its reasonable best efforts to cause such
Registration Statement to become effective and (except as otherwise set forth
herein) to keep such Registration Statement effective until the earlier of (i)
completion of the offering to which the Registration Statement relates or (ii)
forty (40) calendar days from the date of effectiveness (or such longer period
as is required in order to complete any distribution pursuant to a customary
over-allotment option granted to the underwriters in the underwriting agreement
relating to an Underwritten Offering); provided, however, that before filing
such Registration Statement or any amendments thereto, the Company will furnish
to the counsel selected by the Holders of Registrable Securities which are to be
included in such registration copies of all such documents proposed to be filed
and shall not file any such documents to which such counsel reasonably and
promptly objects prior to the filing thereof solely to the extent that such
objection relates to information (x) included in such document relating to the
Holders or (y) as to which the Company fails to certify in writing (in response
to a reasonable written request of the relevant Holders) that such information
will be subject to the Company's indemnification obligation set forth in Section
3.10 below, and provided, further, that the Company may discontinue any
registration of its securities that is being effected pursuant to Section 3.1,
3.2 or 3.3 at any time prior to the effective date of the Registration Statement
relating thereto. Notwithstanding the foregoing, nothing contained herein shall
require the Company to include in any Registration Statement any material
nonpublic information known to any Holder, the failure of which to disclose
prior to any sale of Registrable Securities by such Holder would result in a
violation of any United States federal or state securities laws by such Holder.
2. Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of applicable law with respect to the disposition of all securities
covered by such Registration Statement.
3. Furnish to the Holders of Registrable Securities registering such
securities such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of applicable law, and such
other documents as each such Holder may reasonably request in order to
facilitate the disposition of Registrable Securities owned by it.
4. Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under state blue sky laws in
any
12
<PAGE>
jurisdictions in the United States in which such registration and qualification
is reasonably requested by any Holder; provided, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
jurisdictions or to subject itself to taxation in any such jurisdiction.
5. In the event of any Underwritten Offering, enter into and perform
its obligations under an underwriting agreement, in form and substance
reasonably satisfactory to the Company, with the managing underwriter of such
offering.
6. Promptly notify the Holders: (i) when the Registration Statement or
any post-effective amendment to the Registration Statement has become effective;
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
by any Person for that purpose; and (iii) of the receipt by the Company of any
written notification with respect to the suspension of the qualification of any
Registrable Securities for sale in any jurisdiction or the initiation or written
threat of any proceeding for such purpose.
7. Notify the Holders, at any time when a prospectus relating thereto
is required to be delivered under applicable law, of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Any Holders shall cease using such prospectus immediately upon receipt of notice
from the Company to that effect. If so requested by the Company, each Holder
promptly shall return to the Company any copies of any prospectus in its
possession other than permanent file copies) that contains an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing. Subject to Section 3.4 above, at the request of
any such Holder, the Company shall promptly prepare and furnish to such Holder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
8. If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, and if such Holder
reasonably believes it is or may be deemed to be a control Person in relation
to, or an Affiliate of, the Company, then such Holder shall have the right to
require (i) the insertion therein of language, in form and substance reasonably
satisfactory
13
<PAGE>
to such Holder, to the effect that the holding by such Holder is not be
construed as a recommendation by such Holder of the investment quality of the
Company's securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such Holder by name or
otherwise is not, in the opinion of both counsel to the Company and such Holder,
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder.
9. Only in the case of an Underwritten Offering, and to the extent
reasonably requested by the managing underwriters of such Underwritten Offering,
use its reasonable best efforts to cause to be furnished to the Holders (x) a
signed opinion from counsel to the Company addressed to the underwriters, and
(y) a "comfort" letter from the Company's independent certified public
accounting firm, covering such matters of the type customarily covered by such
opinions and "comfort" letters as the lead managing underwriter may reasonably
request.
10. Use reasonable best efforts to cause the transfer agent to remove
restrictive legends on certificates representing the securities covered by such
Registration Statement, as appropriate and to the extent such removal is
permitted by applicable law and any applicable agreements.
11. Use reasonable best efforts to have the securities covered by such
Registration Statement listed on the same quotation system or market, if any, as
the Ordinary Shares.
12. Execute and deliver all instruments and documents (including in an
Underwritten Offering an underwriting agreement in reasonable and customary
form) and take such other reasonable and customary actions as the holders of
Registrable Securities requesting registration may reasonably request in order
to effect an Underwritten Offering of such Registrable Securities; provided,
however, that notwithstanding anything herein to the contrary, the Company shall
not be obligated to devote any management efforts to supporting any registration
for any Holder of Registrable Securities hereunder other than a customary "road
show" for one Underwritten Offering.
3.6 Furnish Information; Hold-Back Agreement.
1. It shall be a condition precedent to the obligation of the Company
to include any Registrable Securities of any Holder in a Registration Statement
pursuant to Section 3.1, 3.2 or 3.3, as applicable, that the Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
Registrable Securities as shall be required to effect the registration of the
Registrable Securities held by such Holder. Any such information, or any
comments on any such information included in a draft of a Registration Statement
provided to a Holder for its comment, shall be
14
<PAGE>
provided to the Company within any reasonable time period requested by the
Company.
2. Each Holder of Registrable Securities agrees, whether or not such
Holder's Registrable Securities are included in any such registration, not to
effect any sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Securities, or of any security
convertible into or exchangeable or exercisable for any Registrable Securities
(other than as part of such offering), (x) without the consent of the Company in
the case of a non-underwritten offering for a period commencing three calendar
days before and ending thirty calendar days after, or (y) without the consent of
the managing underwriter in the case of an Underwritten Offering, during a
period commencing seven calendar days before and ending 90 calendar days after
(or, in each case, ending after such lesser number of calendar days as the
Company or the lead managing underwriter, as applicable, shall designate for
other parties subject to a similar "hold-back" obligation), in each case, after
the effective date of any offering of the Company's securities.
3. Each Holder shall notify the Company, at any time when a prospectus
is required to be delivered under applicable law, of the happening of any event
as a result of which the prospectus included in the applicable Registration
Statement, as then in effect, in each case only with respect to information
provided by such Holder, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing. All Holders shall immediately upon the happening of any such event
cease using such prospectus. If so requested by the Company, each Holder
promptly shall return to the Company any copies of any prospectus in its
possession (other than permanent file copies) that contains an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing.
4. It is understood that in any Underwritten Offering in addition to
any Ordinary Shares (the "initial shares") the underwriters have committed to
purchase, the underwriting agreement may grant the underwriters an option to
purchase up to a number of additional authorized but unissued Ordinary Shares
(the "option shares") equal to 15% of the initial shares (or such other maximum
amount as the NASD may then permit), solely to cover over-allotments. Ordinary
Shares proposed to be sold by the Company and the other sellers shall be
allocated between initial shares and option shares as agreed. The number of
initial shares and option shares to be sold by requesting Holders shall be
allocated pro rata among all such Holders on the basis of the relative number of
shares of Registrable Securities each such Holder has requested to be included
in such registration.
15
<PAGE>
3.7 Expenses of Registration. Except as otherwise set forth herein
(including, but not limited to, pursuant to Section 3.1(1), Section 3.1(3),
Section 3.1(4) and Section 3.2(1) above), the Company shall bear and pay all
reasonable expenses incurred in connection with any registration, filing or
qualification of Registrable Securities pursuant to Section 3.1, 3.2 or 3.3, as
applicable, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, but excluding underwriting discounts and commissions
and stock transfer taxes relating to the Registrable Securities. Notwithstanding
the foregoing, only reasonable fees and disbursements of one counsel to all
Holders up to a maximum of $10,000 per registration shall be required to be paid
and borne by the Company. Any such counsel for the Holders shall be selected by
the holders of a majority of the Registrable Securities being registered.
3.8 Underwriting Requirements; Cut-Backs. In connection with any
Underwritten Offering of a Holder's Registrable Securities, (1) in the case of
any Demand Registration, the Holders of a majority of the Registrable Securities
to be registered shall be permitted to select the lead managing underwriter,
subject to the reasonable approval of the Company, or, in the case of a
Piggy-Back Registration, the Holders must accept the underwriters selected by
the Company, and (2) the Company shall be required under Section 3.1, 3.2 or 3.3
to register only such quantity of Registrable Securities as the lead managing
underwriter determines, in its sole discretion, will not interfere with the
successful marketing of the offering. To the extent that (x) the lead managing
underwriter advises the Company (in the case of an Underwritten Offering) or (y)
the Holders selling Registrable Securities in such registration and the Company
reasonably agree (in the case of a non-Underwritten Offering) that the
registration of all of the Ordinary Shares sought to be registered will
interfere with the successful marketing of the offering, in the case of a
registration pursuant to Section 3.1(1), 3.1(2), 3.1(3), 3.1(4) or 3.2(1), the
Ordinary Shares to be included shall first be apportioned among the Holders on a
pro rata basis (based on the number of Ordinary Shares proposed to be registered
by each). If the Holders are permitted to register all of the Registrable
Securities that they requested be registered, in connection with such offering,
any remaining Ordinary Shares to be included in such registration shall be
allocated among the Company and such other holders of Ordinary Shares whose
Ordinary Shares are to be included in such Registration Statement pursuant to
Section 3.2(4) above in such proportion as they shall agree upon. In the case of
a registration pursuant to Section 3.3, subject to the last paragraph of Section
3.3(2), as applicable, the Ordinary Shares to be included therein shall be
apportioned as follows: (i) first, the Company and any holders of securities of
the Company (other than the Holders) exercising any demand registration right
granted to such holders shall be entitled to register all Ordinary Shares that
the Company or such other holders propose to sell for their own account, in such
proportion as they shall agree upon; and (ii) second, the Holders shall be
entitled to register, on a pro rata basis together with any other holder of
securities of the Company exercising any piggy-
16
<PAGE>
back registration rights (based on the number of Ordinary Shares proposed to be
registered by each), up to that number of Registrable Securities that is equal
to the remaining number of Ordinary Shares that (x) the lead managing
underwriter advises (in the case of an Underwritten Offering) or (y) any holders
of Ordinary Shares (including any Holders) participating in such registration
and the Company reasonably agree (in the case of a non-Underwritten Offering)
may be registered in connection with such offering without interfering with the
successful marketing thereof.
3.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
3.10 Indemnification. In the event any Registrable Securities are
included in a Registration Statement under Section 3.1, 3.2 or 3.3, as
applicable:
1. To the extent permitted by law, the Company will indemnify and
hold harmless each Holder and each Person, if any, who controls such Holder
within the meaning of the Securities Act and the Securities Exchange Act of
1934, as amended (the "1934 Act"), and their respective directors, officers,
partners, employees and affiliates (each, an "Indemnified Person"), against any
losses, claims, damages, or liabilities to which they may become subject insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (collectively, a "Violation") (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement, including any final prospectus contained therein or any
amendments or supplements thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, and the Company will pay to each Indemnified Person any
reasonable legal or other expenses incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that the indemnity agreement contained in this Section 3.10(1) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the written consent
of the Company, nor shall the Company be liable in any such case for any such
loss, claim, damage, liability or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
information furnished by any Holder for use in connection with such registration
(including, but not limited to, pursuant to Section 3.1(1) or 3.1(4) above) or
is caused by any failure by any Holder to deliver a prospectus or preliminary
prospectus (or amendment or supplement thereto) as and when required under the
Securities Act after such prospectus has been timely furnished by the Company;
and provided, further, that the Company will not be liable hereunder (A) in the
case of any Underwritten Offering, to any Person who participates as an
underwriter in the offering or sale of
17
<PAGE>
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, or (B) in the case of any
offering other than an Underwritten Offering, to any seller of Registrable
Securities covered by such Registration Statement or any other Person, if any,
who controls such seller within the meaning of the Securities Act, under the
indemnity agreement in this Section 3.10(1) with respect to any preliminary
prospectus or final prospectus or final prospectus as amended or supplemented,
as the case may be, to the extent that any such loss, claim, damage or liability
of such underwriter or controlling Person (or seller or controlling Person, as
the case may be) results from the fact that such underwriter (or seller, as the
case may be) sold Registrable Securities to a Person to whom therewas not sent
or given, at or prior to the written confirmation of such sale, a copy of the
preliminary prospectus or of the final prospectus or of the final prospectus as
then amended or supplemented, whichever is most recent, if the Company has
previously furnished copies thereof to such underwriter (or seller, as the case
may be) if the relevant material misstatement or omission or alleged material
misstatement or omission giving rise to such loss, claim, damage or liability
was cured in such preliminary prospectus or final prospectus, as so amended or
supplemented, as the case may be. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller,
director, officer, employee, agent, underwriter or controlling Person, and shall
survive the transfer of such securities by such seller.
2. To the extent permitted by law, each Holder, jointly and
severally, will indemnify and hold harmless the Company, each of its directors,
each of its officers, who has signed the Registration Statement, and each
Person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any losses, claims, damages or liabilities (joint
or several) to which any of the foregoing Persons may become subject, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation is caused (x) by any untrue statement or
alleged untrue statement contained in, or by any omission or alleged omission
from, information furnished to the Company by any Holder for use in any such
Registration Statement or prospectus (including, but not limited to, pursuant to
Section 3.1(1) or 3.1(4) above) or (y) any failure by the Holder to deliver a
prospectus or preliminary prospectus (or amendment or supplement thereto) as and
when required under the Securities Act after such prospectus has been timely
furnished by the Company. Such Holder will pay any reasonable legal or other
expenses incurred by any Indemnified Person pursuant to this Section 3.10(2) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, that the indemnity agreement contained in this
Section 3.10(2) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
written consent of the Holder. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
18
<PAGE>
Company or any such director, officer or controlling Person and shall survive
the transfer of such securities by such seller.
3. Promptly after receipt by an indemnified party under this
Section 3.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 3.10, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the indemnifying parties; provided, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate (in the written reasonable opinion of
counsel to the indemnifying party) due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
3.10.
4. To the extent that a reasonably similar undertaking is not
included in any relevant underwriting agreement or other relevant contractual
agreement, the Company may require, as a condition to including any Registrable
Securities in any Registration Statement filed in accordance with Section 3.1,
3.2 or 3.3, as applicable, hereof, that the Company shall have received an
undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 3.10(2) hereof)
the Company and its directors and officers and each other Person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary, final or summary prospectus contained
therein, or any such amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by or on behalf of such
seller or underwriter for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
Person and shall survive the transfer of such securities by such seller.
19
<PAGE>
5. To the extent the indemnification provided for in this Section
3.10 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by each
of the Company, the Holders and any underwriters from the offering of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, the Holders and the any underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand, and the Holders and any underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering (after
deducting underwriting discounts and commissions, but before deducting expenses)
received by the Company and the Holders (as applicable) and the total
underwriting discounts and commissions received by any underwriters. The
relative fault of the Company, the Holders and any underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Holders or
any underwriters, as applicable, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just and equitable if
contribution pursuant to this clause (e) were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this clause (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in this clause (e) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
6. The obligations of the Company and the Holders under this
Section 3.10 shall survive the completion of any offering of Registrable
Securities under a Registration Statement pursuant to Section 3.1, 3.2 or 3.3,
as applicable.
20
<PAGE>
4. Miscellaneous.
4.1 Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties hereto; provided that no rights or obligations
of GE hereunder may be transferred or assigned other than in connection with a
transfer of GE Shares to an Affiliate of GE or to a Bulk Transferee, which
transfer is made in compliance with the terms of this Agreement and the
Shareholders Agreement. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. Nothing contained herein shall
be construed as permitting any transfer of any securities of the Company in
violation of any applicable law or agreement, including but not limited to the
terms of the Shareholders Agreement.
4.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the conflict of laws provisions thereof. Each of the Company and the Holders
hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State court
sitting in New York City for purposes of all legal proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby. Each of the
Company and the Holders irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
4.3 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
4.4 Captions and Headings. The captions and headings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 Notices. Unless otherwise provided, any notice or other
communication required or permitted to be given or effected under this Agreement
shall be in writing and shall be deemed effective upon personal or facsimile
delivery to the party to be notified or one business day after deposit with an
internationally recognized courier service, delivery fees prepaid, and addressed
to the party to be notified at the following respective addresses, or at such
other addresses as may be designated by written notice; provided, that any
notice of change of address shall be deemed effective only upon receipt.
21
<PAGE>
If to the Company:
c/o Gilat Satellite Networks Ltd.
Gilat House
Yegia Kapayim Street, Kiryat Arye
Petah Tikva 49130
Israel
Fax: 972-3-925-2252
Attention: General Counsel
with a copy to:
Kleinhendler & Halevy
30 Kalisher Street
Tel Aviv, Israel
Fax: 972-3-510-7528
Attention: Gene Kleinhendler, Adv.
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Fax: (212) 735-2000
Attention: Hildy Shandell, Esq.
If to GE or any Holder:
c/o GE American Communications, Inc.
4 Research Way
Princeton, New Jersey 08540-6684
Fax: 609-987-4233
Attention: General Counsel
with a copy to:
Hogan & Hartson L.L.P.
555 13th Street NW
Washington, D.C. 20004
Fax: 202-637-5910
Attention: Steve Kaufman, Esq.
4.6 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
22
<PAGE>
may not be given, unless the Company has obtained written consent of the Holders
of at least a majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure; provided,
however, that no amendment, modification, supplement, waiver or consent to the
departure with respect to the provisions of Section 3.10 hereof shall be
effective as against any Person unless consented to in writing by such Person.
4.7 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
4.8 Entire Agreement. Other than applicable provisions of the
Shareholders Agreement, this Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter. Other than as set forth in the Shareholders Agreement, there are
no restrictions, promises, representations, warranties, agreements or
undertakings of any party hereto with respect to the matters contemplated
hereby, other than those set forth herein or made hereunder.
23
<PAGE>
IN WITNESS WHEREOF, the parties, each by its duly authorized
signatory, have executed this Agreement as of the date first above written.
GENERAL ELECTRIC COMPANY
By /s/ James R. Bunt
------------------------
Name: James R. Bunt
Title: Vice President and Treasurer
GE AMERICAN COMMUNICATIONS, INC.
By /s/ John F. Connelly
--------------------------
Name: John F. Connelly
Title: President and Chief Executive Officer
GENERAL ELECTRIC FINANCE HOLDING GMBH
By /s/ John F. Connelly
-----------------------------
Name: John F. Connelly
Title: Attorney-in-Fact
GENERAL ELECTRIC PLASTICS B.V.
By /s/ John F. Connelly
--------------------------
Name: John F. Connelly
Title: Attorney-in-Fact
GILAT SATELLITE NETWORKS LTD.
By /s/ Yoel Gat
------------------------
Name: Yoel Gat
Title: Chief Executive Officer
24
