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EXHIBIT 10.41
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT dated as of May 16, 1999 between General
Dynamics Corporation, a Delaware corporation (the "Parent Corporation"),
Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership-IV, L.P. a New York limited partnership ("MBO IV"), Gulfstream
Partners, L.P., a New York limited partnership ("Gulfstream Partners"),
Gulfstream Partners II, L.P., a New York limited partnership ("Gulfstream
Partners II"), Nicholas C. Forstmann ("N. Forstmann") and Theodore J. Forstmann
("T. Forstmann"). MBO IV, Gulfstream Partners, Gulfstream Partners II, N.
Forstmann and T. Forstmann are referred to in this Agreement individually as a
"Stockholder" and collectively as the "Stockholders."
Each of the Stockholders is the record holder and beneficial
owner of the number of shares of the Common Stock, par value $.01 per share
(the "Company Common Stock"), of Gulfstream Aerospace Corporation, a Delaware
corporation (the "Company"), indicated on Schedule 1 to this Agreement.
The Parent Corporation, Tara Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of the Parent Corporation, and the
Company are parties to an Agreement and Plan of Merger dated as of the date of
this Agreement (as in effect as of the date hereof, the "Merger Agreement").
As a condition to its willingness to enter into the Merger
Agreement, the Parent Corporation has required that the Stockholders enter into
this Agreement for the purpose of evidencing certain agreements among the
parties relating to the voting and transfer of the Company Common Stock held by
the Stockholders.
Except as otherwise provided herein, all capitalized terms used
in this Agreement will have the respective meanings provided in the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the value,
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Agreements Regarding Voting. Each of the Stockholders
hereby agrees to vote all of the shares of Common Stock held of record or owned
beneficially by such Stockholder on the date of this Agreement or hereafter
acquired by such Stockholder in favor of the adoption of the Merger Agreement
and the approval of the Merger. Each of the Stockholders acknowledges and
agrees that its or his obligations under this Section 1 are unconditional and
will remain in full force and effect for the period provided in this Agreement
notwithstanding that the Company may have received an Acquisition Proposal or
that the Board of Directors of the Company may have withdrawn or amended in a
manner adverse to the Parent Corporation its recommendation and approval of the
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Merger. Concurrently with the execution of this Agreement, each of the
Stockholders has executed and delivered to the Parent Corporation an
irrevocable proxy in the form of Exhibit A to this Agreement appointing the
officers of the Parent Corporation named therein as proxy for such Stockholder
to vote the shares of Company Common Stock held by such Stockholder in
accordance with the provisions of this Agreement.
2. Conflicting Agreements. Each of the Stockholders agrees
that such Stockholder will not grant any proxy or become party to any voting
trust or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement or which grants to any other person or entity the
right, directly or indirectly, to vote or control the disposition of any of the
shares of Company Common Stock held by such Stockholder.
3. Representations and Warranties. The Stockholders hereby
represent and warrant to the Parent Corporation as follows:
(a) Each of MBO IV, Gulfstream and Gulfstream II is a
limited partnership duly organized, validly existing and in good
standing under the laws of the State of New York. Each of MBO IV,
Gulfstream and Gulfstream II has full partnership power and authority
and has taken all requisite action to enable it to execute and deliver
this Agreement, to consummate the transactions contemplated hereby and
to perform its obligations hereunder.
(b) Each of N. Forstmann and T. Forstmann has full power and
authority and has taken all requisite action to enable him to execute
and deliver this Agreement, to consummate the transactions contemplated
hereby and to perform his obligations hereunder.
(c) This Agreement constitutes the valid and legally binding
obligation of each of the Stockholders, enforceable against each of the
Stockholders in accordance with its terms and conditions.
(d) Neither the execution and delivery of this Agreement by
the Stockholders, nor the performance by the Stockholders of their
obligations hereunder, will constitute a violation of, be in conflict
with, constitute or create (with or without notice or lapse of time or
both) a default under, give rise to any right of termination,
cancellation, amendment or acceleration with respect to, or result in
the creation or imposition of any lien, encumbrance, security interest
or other claim upon any property of any Stockholder (including the
Company Common Stock owned by any Stockholder) pursuant to (i) the
partnership agreement of any of the Stockholders that is a partnership,
(ii) any constitutional provision, law, rule, regulation, permit,
order, writ, injunction, judgment or decree to which any of the
Stockholders is subject or (iii) any agreement or commitment to which
any of the Stockholders is a party or by which any of the Stockholders
or any of their respective properties (including the Company Common
Stock owned by any Stockholder) is bound or subject.
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(e) Each of the Stockholders is the record holder and full
beneficial owner of all of the shares of Company Common Stock indicated
as being owned by such Stockholder on Schedule 1 to this Agreement, no
person or entity other than such Stockholder has any right, whether not
shared, to vote or dispose of, or to control or direct the voting or
disposition of, any of such shares, and all such shares are owned by
such Stockholder, free and clear of any lien, encumbrance, security
interest or other claim.
(f) Except for this Agreement, none of the Stockholders is a
party to any voting trust, proxy or other agreement or understanding
with respect to the voting of any capital stock of the Company.
4. Termination. The restrictions set forth in this Agreement
will terminate and will be of no further force or effect upon the first to
occur of (a) the Effective Time of the Merger or (b) the date of the
effectiveness of the termination of the Merger Agreement in accordance with the
provisions of Section 8.1 thereof.
5. Miscellaneous.
(a) Any party having any rights under any provision of this
Agreement will have all rights and remedies set forth in this Agreement
and all rights and remedies that such party may have been granted at
any time under any other agreement or contract and all of the rights
that such party may have under any law. Any such party will be
entitled to enforce such rights specifically, without posting a bond or
other security, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by
law.
(b) No party hereto may assign or delegate any of such
party's rights or obligations under or in connection with this
Agreement without the written consent of the other party hereto. Except
as otherwise expressly provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties
hereto or thereto will be binding upon and enforceable against the
respective successors and assigns of such party and will be enforceable
by and will inure to the benefit of the respective successors and
permitted assigns of such party.
(c) This Agreement may be amended by the execution and
delivery of a written instrument by or on behalf of the Parent
Corporation and each of the Stockholders. No agreement amending or
waiving any provision of this Agreement will be valid or binding unless
it is in writing and is executed and delivered by or on behalf of the
party against which it is sought to be enforced.
(d) Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
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(e) This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
(f) The descriptive headings of this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
(g) All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally to the recipient or when sent to the recipient by telecopy
(receipt confirmed), one business day after the date when sent to the
recipient by reputable express courier service (charges prepaid) or
three business days after the date when mailed to the recipient by
certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications will be sent
to the Parent Corporation and the Stockholders at the addresses
indicated below:
If to the Parent
Corporation: General Dynamics Corporation
3190 Fairview Park Drive
Falls Church, Virginia 22041-4523
Attention: David A. Savner, Esq.
Senior Vice President and
General Counsel
Facsimile No: (703) 876-3125
With a copy (which
will not constitute
notice) to: Jenner & Block
601 13th Street, N.W.
Washington, D.C. 20005
Attention: Craig A. Roeder, Esq.
Facsimile No: (202) 639-6066
If to a Stockholder: To the address indicated on
Schedule 1 to this Agreement
With a copy (which
will not constitute
notice) to: Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Stephen Fraidin, P.C.
Aviva Diamant, Esq.
Facsimile No: (212) 859-4000
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or to such other address or to the attention of such other party as the
recipient party has specified by prior written notice to the sending
party.
(h) This Agreement (including the Merger Agreement and the
other documents referred to herein) constitutes the entire agreement
among the parties and supersedes any prior understandings, agreements
or representations by or among the parties, written or oral, that may
have related in any way to the subject matter hereof.
(i) The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent and
no rule of strict construction will be applied against any party. The
use of the word "including" in this Agreement means "including without
limitation" and is intended by the parties to be by way of example
rather than limitation. For purposes of this Agreement, the term
"Company Common Stock" includes any equity securities issued or
issuable directly or indirectly with respect to the outstanding shares
of Company Common Stock by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization and any other shares of any class
or series of capital stock of the Company held by a Stockholder.
(i) Each of the parties to this Agreement submits to the
jurisdiction of any state or federal court sitting in Wilmington,
Delaware, in any action or proceeding arising out of or relating to
this Agreement, agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court, and agrees
not to bring any action or proceeding arising out of or relating to
this Agreement in any other court. Each of the parties to this
Agreement waives any defense of inconvenient forum to the maintenance
of any action or proceeding so brought and waives any bond, surety or
other security that might be required of any other party with respect
thereto.
(j) ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW,
AND NOT THE LAW OF CONFLICTS, OF THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first written above.
GENERAL DYNAMICS CORPORATION
By /s/ DAVID A. SAVNER
-------------------------------------------
David A. Savner
Senior Vice President and
General Counsel
FORSTMANN LITTLE & CO. SUBORDINATED
DEBT AND EQUITY MANAGEMENT BUYOUT
PARTNERSHIP - IV, L.P.
By FLC XXIX PARTNERSHIP, L.P.
Its General Partner
By /s/ THEODORE J. FORSTMANN
-------------------------------------------
Theodore J. Forstmann
General Partner
GULFSTREAM PARTNERS, L.P.
By FLC XXI PARTNERSHIP
Its General Partner
By /s/ NICHOLAS C. FORSTMANN
-------------------------------------------
Nicholas C. Forstmann
General Partner
GULFSTREAM PARTNERS II, L.P.
By FLC XXIV PARTNERSHIP
Its General Partner
By /s/ THEODORE J. FORSTMANN
-------------------------------------------
Theodore J. Forstmann
General Partner
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/s/ NICHOLAS C. FORSTMANN
---------------------------------------------
Nicholas C. Forstmann
/s/ THEODORE J. FORSTMANN
---------------------------------------------
Theodore J. Forstmann
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SCHEDULE I
Stockholder Shares of Company Common Stock
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Forstmann Little & Co. Subordinated 10,265,915
Debt and Equity Management Buyout
Partnership IV, L.P.
c/o Forstmann Little & Co.
767 Fifth Avenue
New York, New York 10153
Attention: Theodore J. Forstmann
Facsimile No: 212/759-9059
Gulfstream Partners, L.P 2,674,325
c/o Forstmann Little & Co.
767 Fifth Avenue
New York, New York 10153
Attention: Theodore J. Forstmann
Facsimile No: 212/759-9059
Gulfstream Partners II, L.P. 3,614,135
c/o Forstmann Little & Co.
767 Fifth Avenue
New York, New York 10153
Attention: Theodore J. Forstmann
Facsimile No: 212/759-9059
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned, as the record holder and beneficial owner of the
below indicated shares of the Common Stock, par value $.01 per share (the
"Company Common Stock"), of Gulfstream Aerospace Corporation, a Delaware
corporation (the "Company"), hereby revokes all previous proxies and appoints
Michael J. Mancuso and David A. Savner, and each of such persons acting alone,
as the true and lawful proxy and attorney-in-fact for the undersigned to vote
all shares of the Company Common Stock held by the undersigned in favor of the
adoption of the Agreement and Plan of Merger dated as of May 16, 1999 among
General Dynamics Corporation, a Delaware corporation (the "Parent
Corporation"), Tara Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of the Parent Corporation, and the Company (as in
effect as of the date hereof, the "Merger Agreement") and the merger
contemplated thereby (the "Merger") at any and all meetings of the stockholders
of the Company called to consider the Merger Agreement and/or the Merger, and
at any adjournments thereof, held on or after the date of the giving of this
proxy and prior to the date of the effectiveness of the termination of the
Merger Agreement in accordance with the provisions of Section 8.1 thereof, and
to execute on behalf of the undersigned any and all written consents of
stockholders of the Company to be executed on or after the date of the giving
of this proxy and prior to the date of the effectiveness of the termination of
the Merger Agreement in accordance with the terms of Section 8.1 thereof, with
the same effect as if the undersigned had personally voted such shares or had
personally signed such written consent.
The undersigned authorizes and directs the proxy holder to file this
proxy with the Secretary of the Company and authorizes the proxy holder to
substitute another person as proxy holder and to file the substitution
instrument with the Secretary of the Company.
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This proxy is given pursuant to a Voting Agreement dated as of this
date among the undersigned, the Parent Corporation and certain other
stockholders of the Company (as in effect as of the date hereof, the "Voting
Agreement") and is being delivered as an inducement for the Parent Corporation
to enter into the Merger Agreement. This proxy is therefore coupled with an
interest and may not be revoked without the written consent of the Parent
Corporation unless and until the Voting Agreement is terminated in accordance
with the provisions of Section 5 thereof.
Date: May 16, 1999
Number of Shares of
Company Common Stock:
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Signature
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