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Exhibit 10.15
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SHARE PURCHASE AGREEMENT
BETWEEN
PARADIGM GEOPHYSICAL LTD.
AND
SHAMROCK HOLDINGS, INC.
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Dated as of April 14, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I THE TRANSACTIONS 2
1.1 Purchase and Sale 2
1.2 Payment of Purchase Price 3
1.3 The Closing 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE PURCHASER 3
2.1 Organization 3
2.2 Authority 3
2.3 No Violation 3
2.4 Securities Act Representation 4
2.5 Shareholding
2.5 Purchase for Investment 4
2.6 Status of Purchaser 4
2.7 Legends 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
3.1 Corporate Organization 5
3.2 Share Capital 5
3.3 Share Capital of Subsidiaries 5
3.4 Newly Issued Shares 6
3.5 Authority; Enforcement 6
3.6 No Violation 6
3.7 Brokers 7
3.8 Foreign Private Issuer 7
3.9 Commission Reports 7
3.10 Litigation 7
3.11 Disclosure 7
3.12 Intellectual Property and Other Tangible Assets 7
3.13 Industrial Company 8
3.14 Compliance with Laws 9
3.15 Insurance 9
3.16 Foreign Corrupt Practices Act 9
3.17 Foreign Currency Hedging Transactions 9
3.18 Contracts 9
3.19 Financial Statements 10
3.20 No Undisclosed Liabilities 10
3.21 Listing of Ordinary Shares 10
3.22 Taxes 10
3.23 Certain Relationships 10
3.24 HSR Act 11
ARTICLE IV COVENANTS AND AGREEMENTS 11
4.1 Board Member 11
4.2 Best Efforts 12
4.3 Financial Statements 12
4.4 Indemnification 12
4.5 Registration of Conversion of Preferred Shares 13
4.6 Approval of Certain Business 13
ARTICLE V CONDITIONS PRECEDENT 14
5.1 Conditions to Each Party's Obligations 14
5.2 Conditions to the Obligations of the Company 14
5.3 Conditions to the Obligations of the Purchaser 14
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ARTICLE VI MISCELLANEOUS 16
6.1 Amendment 16
6.2 Waiver 16
6.3 Termination 17
6.4 Notices 17
6.5 Headings; Agreement 18
6.6 Publicity 18
6.7 Entire Agreement 18
6.8 Conveyance Taxes 18
6.9 Assignment 18
6.10 Counterparts 19
6.11 Governing Law 19
6.12 Third Party Beneficiaries 19
6.13 Costs and Expenses 19
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SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT (the "Agreement") dated as of April 14,
1999 by and between Paradigm Geophysical Ltd., an Israeli corporation (the
"Company"), and Shamrock Holdings, Inc., a Delaware corporation (the
"Purchaser").
R E C I T A L S:
WHEREAS, the Purchaser wishes to purchase from the Company, and
the Company wishes to sell to the Purchaser, the number of Ordinary Shares (NIS
0.5 par value) of the Company (the "Ordinary Shares") as is set forth in Section
1.1 below, on the terms and subject to the conditions set forth herein;
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, agreements and conditions
contained herein, the sufficiency of which is hereby acknowledged, and in order
to set forth the terms and conditions of the transactions described herein and
the mode of carrying the same into effect, the parties hereby agree as follows:
ARTICLE I
THE TRANSACTIONS
1.1 Purchase and Sale.
(a) Subject to the terms and conditions of this Agreement,
Purchaser agrees to purchase from the Company and the Company agrees to sell to
Purchaser at the Closing (as defined below) 877,193 Ordinary Shares of NIS 0.5
nominal value NIS 0.5 each of the Company (the "Shares") in consideration for an
aggregate purchase price of $5,000,000, representing 7.69% of the issued and
outstanding share capital of the Company immediately after the Closing (and
approximately 5.69% on a fully diluted basis, assuming exercise of all
outstanding warrants and options and assuming the investment by Eastgate as
defined below).
(b) The Purchaser agrees that the Company may issue
263,158 Ordinary Shares to Eastgate [full name] ("Eastgate") at the same price
and otherwise according to the same terms and conditions as specified in this
Agreement. The closing of the Eastgate investment is contemplated to take place
simultaneously with the Closing (as defined in Section 1.3 below).
1.2 Payment of Purchase Price.
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(a) Payment by Purchaser of the aggregate purchase price
for the Shares shall be made in cash via wire transfer of immediately available
funds to a bank account designated by the Company on the Closing Date (as
defined below). At the Closing, the Company shall deliver to Purchaser a
certificate registered in the name of the Purchaser representing the Shares
purchased by Purchaser in accordance with Section 1.1(a) hereof and the
documents specified in Section 5.3 below.
1.3 The Closing.
Subject to the fulfillment of the conditions precedent
specified in Article V hereof (any or all of which may be waived in writing by
the respective parties whose performance is conditioned upon satisfaction of
such conditions precedent), the purchase and sale of the Shares shall be
consummated at a closing (the "Closing") to be held at the offices of Efrati,
Galili & Co., 0 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx, on April 29, 1999 at 10:00
am, Israeli time, or as soon as practicable thereafter following the
satisfaction or waiver of all relevant conditions precedent specified in Article
V hereof, or at such other place and time as the Company and Purchaser shall
mutually agree after the satisfaction or waiver of all conditions precedent
specified in Article V hereof (the date on which the Closing occurs being herein
referred to as the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Purchaser represents and warrants to the Company, as to all
matters relevant thereto, as follows:
2.1 Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
2.2 Authority. Purchaser has full corporate power and authority
to execute and deliver this Agreement and each other agreement contemplated
hereby, to carry out its obligations hereunder and to consummate the
transactions contemplated on its part hereby. The execution, delivery and
performance by Purchaser of this Agreement and each other agreement contemplated
hereby have been duly authorized by all necessary corporate action on the part
of Purchaser, and no other action on the part of Purchaser is necessary to
authorize the execution and delivery of this Agreement and each other agreement
contemplated hereby by Purchaser or the performance by Purchaser of its
obligations hereunder. This Agreement has been duly executed and delivered by
Purchaser and constitutes a legal, valid and binding agreement of Purchaser,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and subject to general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
2.3 No Violation. The execution and delivery of this Agreement
and the Registration Rights Agreement (as defined below) by Purchaser, the
performance by Purchaser of its obligations hereunder and thereunder and the
consummation by it of the transactions contemplated hereby and thereby will not
(a) violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to Purchaser, (b) require
the consent, waiver, approval, license or authorization of or any filing by
Purchaser with any person or governmental authority, except for filings to be
made in connection with or in compliance with the provisions of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), Regulation D
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as promulgated under the Securities Act of 1933, as amended (the "Securities
Act") and applicable state securities laws, and the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), to the extent applicable,
or (c) violate, result (with or without notice or the passage of time, or both)
in a material breach of or give rise to the right to accelerate, terminate or
cancel any obligation under or constitute (with or without notice or the passage
of time, or both) a material default under, any of the terms or provisions of
any charter or bylaw, partnership agreement, indenture, mortgage, agreement,
contract, order, judgment, ordinance, regulation or decree to which Purchaser is
subject or by which Purchaser is bound except for any of the foregoing matters
which would not have, individually or in the aggregate, a material and adverse
effect upon the operations, financial condition or results of operations (a
"Material Adverse Effect") of the Purchaser.
2.4 Securities Act Representation. Purchaser is an "accredited
investor" as defined in Rule 501 promulgated as part of Regulation D under the
Securities Act. Purchaser is not acquiring the Shares with a view to a
distribution or resale of any of such securities in violation of any applicable
securities laws.
2.5 Purchase for Investment. This Agreement is concluded with the
Purchaser in reliance upon the Purchaser's representation to the Company that
the Shares to be issued to the Purchaser will be acquired for investment for the
Purchaser's own account, and not with a view to the sale or distribution of any
part thereof.
2.6 Status of Purchaser. Purchaser is purchasing the Shares for
its own account and not with the intention of effecting an offering of the
Shares to the public. Purchaser is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
securities such as the Shares. Subject to the Company's representations made in
this Agreement being correct, Purchaser has requested from the Company all
information it would deem relevant in making a decision to execute this
Agreement and to purchase the Shares.
2.7 Legends. Purchaser agrees that the certificates representing
the Shares purchased hereunder shall bear the legend set forth below:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY
AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF, AND NEITHER SUCH
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, ASSIGNED,
TRANSFERRED OR PLEDGED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW
COVERING SUCH SECURITIES OR THE CORPORATION RECEIVES AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO THE CORPORATION OR OTHER
EVIDENCE REASONABLY ACCEPTABLE TO THE CORPORATION INDICATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR PLEDGE IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND
ANY APPLICABLE STATE SECURITIES LAW."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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OF THE COMPANY
The Company represents and warrants to the Purchaser as follows:
3.1 Corporate Organization. Each of the Company and its
subsidiaries, as listed on Schedule 3.1, which indicates their respective
jurisdictions of organization (the "Subsidiaries"), is a corporation or other
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization with all requisite corporate
power and authority to lease its properties and to carry on its business as it
is now being conducted, and is qualified or licensed to do business and is in
good standing in each jurisdiction in which it currently carries on business,
except where the failure to be so qualified or licensed or be in good standing
would not reasonably be expected, individually or in the aggregate, to have, a
material and adverse effect upon the operations, financial condition or results
of operations of the Company and its Subsidiaries considered as a whole (a
"Material Adverse Effect"). True and complete copies of the Articles of
Association and the Memorandum of Association of the Company, each as amended to
date, have been delivered to the Purchaser.
3.2 Share Capital. The authorized share capital of the Company
consists in its entirety of 18,000,000 Ordinary Shares, of which, as of the date
hereof, 10,528,884 are issued and outstanding (11,406,077 assuming issuance of
the shares to Jerusalem Venture Partners L.P and Jerusalem Venture Partners
(Israel) L.P pursuant to that Share Purchase Agreement dated March 12, 1999)
(the "JVP Agreement") and 2,000,000 Special Preferred Shares, none of which are
issued and outstanding. In addition, (a) an aggregate of 2,285,600 Ordinary
Shares are reserved for issuance pursuant to the Company's 1994 Stock Option
Plan for key employees, the May 1994 Stock Option Plan, the 1994 General Stock
Option Plan, the 1997 Stock Option Plan for Qualifying Israel Employees, the
1997 Executive Stock Option Plan and the 1997 Stock Option Plan for U.S.
Employees (collectively, the "1994 and 1997 Stock Option Plans"), of which
options to purchase 1,578,216 Ordinary Shares were outstanding as of the date
hereof; and (b) 1,199,908 Ordinary Shares are reserved for issuance in
connection with the exercise of certain outstanding warrants. In addition, the
Company has undertaken to issue warrants to purchase 250,000 Ordinary Shares of
the Company to Xxxxxxxx & Co., upon the closing of the investment by Eastgate,
exercisable at an exercise price per share which is no less than the purchase
price per Share payable hereunder. Other than the Shareholder Agreement (as
defined below), which shall be terminated prior to the Closing, the Company is
not aware of any other shareholders agreement or voting agreement affecting or
binding upon the capital shares of the Company. All of the above outstanding
shares have been duly authorized and validly issued, are fully paid and
non-assessable, are not subject to preemptive rights, and are owned by the
Company's shareholders free and clear of any liens, encumbrances, security
interests, adverse claims or equities or rights in favor of another
("Encumbrances") imposed or created by the Company. Except as set forth in
Schedule 3.2, none of the outstanding capital shares of the Company are subject
to any co-sale right, registration right, right of first refusal or other
similar right to purchase any shares pursuant to any agreement to which the
Company is a party or otherwise imposed or created by the Company or imposed by
Israeli law. Other than as described above, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any capital shares of the Company or any security
convertible into or exchangeable for share capital of the Company. All shares to
be issued upon the exercise of outstanding warrants or options or upon the
conversion of any security shall be, when issued or sold in accordance with the
terms of the applicable agreements, validly issued, fully paid and
non-assessable.
3.3 Share Capital of Subsidiaries. All the issued share capital
and other equity securities of each Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable, with no
personal liability attaching thereto solely by virtue of the
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ownership thereof and are legally and beneficially owned by the Company
directly, or indirectly through one of its other Subsidiaries, free and clear of
all Encumbrances, and there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans or arrangements
to issue, any capital shares or other equity securities of any Subsidiary of the
Company or any security convertible or exchangeable or exercisable for capital
shares or other equity securities of any Subsidiary of the Company; except for
the capital shares or other equity securities of each Subsidiary of the Company
owned by the Company directly, or indirectly through one of its other
Subsidiaries, neither the Company nor any of its Subsidiaries owns, directly or
indirectly, any capital shares of any corporation or has or owns any equity
securities in any firm, partnership, joint venture or other entity. Except for
Paradigm Geophysical Corp., no Subsidiary of the Company is a Significant
Subsidiary, as such term is defined in Rule 405 of the rules and regulations of
the Securities and Exchange Commission (the "Commission") under the Securities
Act.
3.4 Newly Issued Shares. The Shares to be sold and issued by the
Company to the Purchaser in accordance with the terms of this Agreement have
been duly authorized and, when issued as contemplated hereby, will be validly
issued, fully paid and non-assessable, and no other person has any preemptive
right, option, warrant, subscription agreement or other right with respect to
such Shares. Upon the issuance of the Shares, the Purchaser will acquire good
and marketable title to the shares free and clear of any and all Encumbrances,
except such Encumbrances as may be created pursuant to this Agreement or by
Purchaser.
3.5 Authority; Enforcement. The Company has full corporate power
and authority to execute and deliver this Agreement, the Registration Rights
Agreement, the Amendment to 1997 Warrants, the Amendment to 1996 Purchase
Agreement, the Amendment to 1995 Purchase Agreement, the Amendment to 1994
Warrants, the Shareholders Agreement and each other agreement contemplated
hereby (collectively the "Agreements"), to carry out its obligations hereunder
and thereunder and to consummate the transactions contemplated on its part
hereby and thereby. The execution, delivery and performance by the Company of
the Agreements and the consummation of the transactions contemplated on its part
hereby and thereby have been duly authorized by the Board, and no other
corporate proceedings on the part of the Company to the Company's issuance of
the Shares to be issued pursuant to this Agreement and to the Company's entering
into the Agreements are necessary to authorize the execution and delivery of the
Agreements by the Company or the performance by the Company of its obligations
thereunder. The Agreements have been duly executed and delivered by the Company
and constitute legal, valid and binding obligations of the Company, enforceable
against the Company and each party thereto in accordance with its terms, subject
to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and subject to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.6 No Violation. The execution and delivery by the Company of
the Agreements, the performance by the Company of its obligations thereunder and
the consummation by it of the transactions contemplated thereby will not (a)
violate any provision of law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award applicable to the Company or any of
its Subsidiaries, or (b) require the consent, waiver, approval, license or
authorization of or any filing by the Company with any person or governmental
authority, except for filings to be made or consents to be obtained in
connection with or in compliance with the provisions of the Exchange Act,
Regulation D as promulgated under the Securities Act, applicable state
securities laws, the Chief Scientist of the Israeli Ministry of Industry and
Commerce, the Investment Center, Bank Hapoalim B.M. and the Bank for Industrial
Development in Israel Ltd. and (with respect to registration rights to be
granted to Purchaser under the Registration Rights Agreement) certain existing
shareholders and warrant holders of the Company who have
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registration rights as specified in Section 5.3, or (c) violate, result (with or
without notice or the passage of time, or both) in a breach of or give rise to
the right to accelerate, terminate or cancel any obligation under or constitute
(with or without notice or the passage of time, or both) a default under, any of
the terms or provisions of any charter, articles of association, or bylaw,
partnership agreement, indenture, mortgage, agreement, contract, order,
judgment, ordinance, regulation or decree to which the Company or any of its
Subsidiaries is subject or by which the Company or any of its Subsidiaries is
bound, except for any of the foregoing matters which would not have,
individually or in the aggregate, a Material Adverse Effect.
3.7 Brokers. The Company has not paid or become obligated to pay
any fee or commission to any broker, finder, investment banker or other
intermediary in connection with this Agreement.
3.8 Foreign Private Issuer. The Company is a "foreign private
issuer," as defined in Rule 3b-4 of the Exchange Act.
3.9 Commission Reports. Since its initial public offering in June
1998, the Company has filed with the Commission all reports, filings, proxy
materials and registration statements required to be filed by it as a foreign
private issuer listed on the Nasdaq National Market pursuant to the federal
securities laws and has made all other filings with the Commission required to
be made where the failure to have made such filing has or is expected by the
Company to have a Material Adverse Effect on the Company (collectively and
together with the Company's Registration Statement on Form F-1, Commission File
No. 333-7926 (the "Registration Statement"), the "Commission Filings"). The
Commission Filings did not (as of their respective filing dates, mailing dates
or effective dates, as the case may be) contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company has fully
complied in all material respects with the Israeli Securities Law of 1968 and
with the applicable term of any exemption granted thereunder. The Company
acknowledges that the Purchaser is relying on the Commission Filings with
respect to its purchases of the Shares pursuant to this Agreement.
3.10 Litigation. Except as disclosed in Commission Filings prior
to the date hereof or in Schedule 3.10, there is no legal action, suit,
investigation or proceeding pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or the
assets of any of them which could have, individually or in the aggregate, a
Material Adverse Effect on the Company, or on the Company's ability to perform
or observe any obligation or condition under the Agreements. Except as disclosed
in Schedule 3.10, there is no basis for a claim or a potential claim affecting
the Company or any of its Subsidiaries which could have a Material Adverse
Effect.
3.11 Disclosure. To the best knowledge of the Company after due
inquiry, there is no fact or facts (excluding general economic conditions and
prevailing economic conditions generally affecting the oil and gas industry)
peculiar to the Company or any of its Subsidiaries which the Company has not
disclosed to the Purchaser in writing or in the Commission Filings which could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Company or the ability of the Company to perform the
Agreements.
3.12 Intellectual Property and Other Tangible Assets.
(a) The Company and the Subsidiaries (i) own or have the
right to use, free and clear of all liens, claims and restrictions, all patents,
trademarks, service marks, trade
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names and copyrights, and applications, licenses and rights with respect to the
foregoing, and all trade secrets including know-how, inventions, designs,
processes, works of authorship, computer programs and technical data and
information (collectively, "Intellectual Property") used and sufficient for use
in the conduct of its business as now conducted and/or as presently proposed to
be conducted without infringing upon or violating, in any material respect, any
right, lien, or claim of others, including without limitation former employees
and former employers of its past and present employees and, (ii) except as
described in Schedule 3.12, which lists by payee the amount of royalties or fees
in excess of $50,000 per year that the Company or any of its Subsidiaries is
obligated to pay, are not obligated or under any liability whatsoever to make
any payments by way of royalties, fees or otherwise to any owner or licensee of,
or other claimant to, any patent, trademark, service xxxx, trade name, copyright
or other intangible asset, with respect to the use thereof or in connection with
the conduct of its business or otherwise.
(b) Any and all Intellectual Property of any kind, relating
to the business of the Company, currently being developed by any employee of the
Company or any Subsidiary while in the employ of the Company or such Subsidiary,
shall be the property solely of the Company or such Subsidiary. The Company and
the Subsidiaries have taken security measures to protect the secrecy,
confidentiality and value of all the Intellectual Property, which measures are
reasonable customary in the industry in which the Company operates. Each of the
Company's and the Subsidiaries' employees and other persons who, either alone or
in concert with others, developed, invented, discovered, derived, programmed or
designed the Intellectual Property, or who has a knowledge of or access to
information about the Intellectual Property, have entered into a written
agreement with the Company or such Subsidiary, in form and substance
satisfactory to the Company's management and reasonable and customary in the
industry in which the Company operates (the "Proprietary Information Agreement")
regarding ownership and treatment of the Intellectual Property.
(c) Neither the Company nor any Subsidiary has received any
communications alleging that the Company or any Subsidiary has violated or by
conducting its business as proposed, would violate, any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other
proprietary rights of any other person or entity. None of the Company's or any
Subsidiary's employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any
judgment, decree or order of any court or administrative agency, that would
interfere with the use of such employee's best efforts to promote the interests
of the Company or that would conflict with the Company's or any Subsidiaries'
business as conducted and proposed to be conducted. Neither the execution nor
delivery of the Agreement, nor the carrying on of the Company or such
Subsidiary, nor the conduct of the Company's or any Subsidiaries' business as
proposed to be conducted, will conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under any contract,
covenant or instrument under which any of such employees is now obligated. It is
not, and will not become, necessary to utilize any inventions of any of the
Company's or any Subsidiary's employees (or people the Company or any Subsidiary
currently intends to hire) made prior to their employment by the Company or such
Subsidiary other than those that have been assigned to the Company pursuant to
the Proprietary Information Agreement signed by such employee.
3.13 Industrial Company. The Company is qualified as an
"Industrial Company" within the definition of the Law for the Encouragement of
Industry (Taxes), 1969., and has obtained a certificate of the Company's
auditors certifying such qualification, a copy of which is attached to this
Agreement as Schedule 3.13. According to the Company's best knowledge,
information and belief, there is no reason for disqualifying the Company from
being an Industrial Company, nor would such reason arise through the conduct and
performance of the Company's business and operations in accordance with its
plans and projections.
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3.14 Compliance with Laws. Each of the Company and its
Subsidiaries is in compliance with all laws, ordinances, regulations, and orders
applicable to it, the failure to comply with which would have, individually or
in the aggregate, a Material Adverse Effect, including without limitation, the
provisions of the Law for Encouragement of Capital Investments, 1959, applicable
to the Company and the terms of any "Approval Letter" issued to the Company
thereunder and its extensions, amendments and supplements, if any. Except as set
forth on Schedule 3.14, the Company and its Subsidiaries have such licenses,
franchises, permits and other approvals or authorizations from governmental
regulatory authorities ("Permits") as are necessary under applicable law to own
their respective properties and to conduct their respective businesses in the
manner now being conducted and as described in the Registration Statement; and
the Company and its Subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, except where the failure to
hold such Permits or perform such obligations would not have a Material Adverse
Effect. Except as set forth on Schedule 3.14 or otherwise in this Agreement, (a)
there are no citations, fines or penalties heretofore asserted against the
Company or its Subsidiaries under any federal, state or local law or regulation
which remain unpaid or which otherwise bind any assets material to the Company
and its Subsidiaries, and (b) the Company or any of its Subsidiaries has not
received any unresolved notice from any federal, state or local governmental
authority with respect to any violation of any federal, state or local law or
regulation which, if resolved against the Company or any of its Subsidiaries,
would have, individually or in the aggregate, a Material Adverse Effect.
3.15 Insurance. The Company and its Subsidiaries have in full
force insurance coverage of their respective properties, assets and business
(including casualty, general liability, products liability and business
interruption insurance) that is (i) no less protective in any material respect
than the insurance the Company and its Subsidiaries have carried in accordance
with their past practices or (ii) prudent given the nature of the business of
the Company and its Subsidiaries and the prevailing practice among companies
similarly situated.
3.16 Foreign Corrupt Practices Act. The activities of each of the
Company and its Subsidiaries and its officers, directors and employees have
complied, and the operations of each of the Company and its Subsidiaries and the
activities of the officers, directors and employees of each of the Company and
its Subsidiaries have complied, with all applicable laws governing corrupt or
illicit business practices, including, without limitation, laws dealing with
improper or illegal payments, gifts or gratuities and/or the payment of money or
anything of value directly or indirectly to any person (whether a government
official or private individual) for the purpose of illegally or improperly
inducing any person or government official, or political party or official
thereof, or any candidate for any such position, in making any decision or
improperly assisting any person in obtaining or retaining business or taking any
other action favorable to such person, and/or dealing with business practices in
relation to foreign investments (including, by way of example, if applicable,
the U.S. Foreign Corrupt Practices Act).
3.17 Foreign Currency Hedging Transactions. Neither the Company
nor any of its Subsidiaries has entered into any foreign currency hedging
arrangement.
3.18 Contracts. Except as set forth on Schedule 3.18, all
contracts that are material to the Company and its Subsidiaries and to which the
Company or any of its Subsidiaries is a party ("Material Contracts") which are
required to have been filed as exhibits to the Registration Statement, have been
so filed. All Material Contracts constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof. There is not, with respect to
the Material Contracts, any existing default, or event of default by the Company
or its Subsidiaries or any other party, or event which
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with or without due notice or lapse of time or both would constitute a default
or event of default on the part of the Company or its Subsidiaries, except such
defaults or events of default on the part of the Company or its Subsidiaries, or
any other party and other events which would not have, individually or in the
aggregate, a Material Adverse Effect. No default exists, and no event has
occurred which with notice or lapse of time, or both, would constitute a default
in the due performance and observance of any term, covenant or condition of any
Material Contract or other indenture, mortgage, deed of trust, bank loan or
credit agreement, lease or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which any of them or their respective
properties is bound or may be affected, which defaults would have, individually
or in the aggregate, a Material Adverse Effect.
3.19 Financial Statements. Attached hereto as Schedule 3.19
balance sheets of the Company and its Subsidiaries as at December 31, 1998,
December 31, 1997 and December 31, 1996, and statements of operations, cash flow
and stockholders' equity for each of the fiscal years then ended, audited by the
Company's independent public accountants, each including the accompanying notes.
Such balance sheets of the Company and its Subsidiaries and the notes thereto
present fairly the financial position of the Company and its Subsidiaries as at
the respective dates thereof, and such statements of operations, cash flow and
stockholders' equity of the Company and the notes thereto present fairly in all
material respects the results of operations, cash flow and stockholders' equity
of the Company for the periods therein referred to, all in accordance with
United States generally accepted accounting principles consistently applied.
3.20 No Undisclosed Liabilities. Except as disclosed in Schedule
3.20, the Company and its Subsidiaries have no material liabilities which are
not reflected or reserved against in the balance sheets specified in Section
3.19 above, except for liabilities incurred in the ordinary course of business
and immaterial in amount consistent with past practice.
3.21 Listing of Ordinary Shares. The outstanding Ordinary Shares
are listed on the Nasdaq National Market, and the Company's listing agreement
with respect thereto is in full force and effect. No action has been taken or
threatened by Nasdaq with respect to the delisting or suspension from trading of
the Ordinary Shares.
3.22 Taxes. The Company and each of its Subsidiaries has timely
filed all necessary tax returns and notices, and has paid all federal, state,
county, local and foreign taxes of any nature whatsoever to the extent such
taxes have become due (including, without limitation, all tax returns required
under the laws of the State of Israel). The Company has no knowledge, or any
reasonable grounds to know, of any tax deficiencies which might be assessed
against the Company which, if so assessed, may have a Material Adverse Effect;
the Company and each of its Subsidiaries has paid all taxes which have become
due, whether pursuant to any assessments or otherwise, and there is no further
liability (whether or not disclosed on such returns) or assessments for any such
taxes, and no interest or penalties accrued or accruing with respect thereto,
except as may be set forth or adequately reserved for in the Company's financial
statements , copies of which have been delivered to Purchaser. The Company has
been informed that the Israeli income tax authorities intend to audit its tax
returns for the years 1993 to 1997 (inclusive).
3.23 Certain Relationships. No material relationship, direct or
indirect, exists between or among the Company or its Subsidiaries on the one
hand and the directors, officers, or shareholders of the Company, on the other
hand, other than in the ordinary course of the Company's business, nor any
relationship exists between or among the Company or its Subsidiaries on the one
hand, and any of its customers or suppliers on the other hand, in value
exceeding, with respect to any customer or supplier, 10% of the revenues or
profits of the Company, on a consolidated basis, all except those described in
the Registration Statement, including without limitation items required
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to be disclosed under Item 13 of Form 20-F of the rules and regulations of the
Securities and Exchange Commission under the Securities Act if the Company were
to file a Form 20-F as of the date hereof.
3.24 HSR Act. The transactions contemplated by the Purchase
Agreement are exempt from the requirements of the HSR Act because, for each of
the fiscal years ended December 31, 1997 and December 31, 1998, (i) the
aggregate book value of the Company's assets located in the U.S. (other than
investment assets, voting or nonvoting securities of another person, and assets
included pursuant to Section 801.40(c)(2) of the HSR Act) was less than $15
million, and (ii) the Company's aggregate sales in or into the U.S. were less
than $25 million. For purposes of this Section 3.27, the "Company" shall include
all entities "controlled" by the Company, directly or indirectly, within the
meaning of such term as defined in Section 801.1(b) of the HSR Act.
ARTICLE IV
COVENANTS AND AGREEMENTS
4.1 Board Member. (a) As long as the Purchaser holds more than
three and a half percent (3.5%) of the issued and outstanding shares of the
Company, the Company will recommend to the shareholders of the Company prior to
any general meeting of shareholders of the Company, at which directors may be
proposed to be elected, to elect a representative of the Purchaser to the Board
of Directors of the Company (the "Purchaser's Director") and will take all
lawful actions to solicit such election.
(b) The Company shall notify the Purchaser of the proposed
date for the Company's annual general meeting ("AGM") as soon as reasonably
practicable but in any event not later than 21 days prior to the last day in
each calendar year on which a shareholder may propose a nominee for election to
the Board in accordance with Article 66(b) of the Company's Articles of
Association. Purchaser will furnish the Company with the names and other
information as is reasonably requested by the Company of the Purchaser's
Directors, as will be proposed for election to the Board at the AGM, within 21
days after such notice. An individual designated by the Purchaser as a
Purchaser's Director, other than any of Messrs. Xxxxxxx X. Gold, Xxxxxxx Xxxxxx,
Xxxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxxxx or any Managing Director of Shamrock
Capital Advisors, Inc., shall be subject to the approval of the Board, which
approval shall not be unreasonably withheld or delayed. Purchaser agrees that in
the event that the Board submits to the shareholders of the Company a proposal,
which provides for an amendment to the Articles of Association of the Company
increasing the number of directors constituting the Board to nine, to be
considered for shareholder vote at the next occurring AGM in order to appoint an
additional independent director as contemplated by Section 4.1 of the JVP
Agreement, Purchaser agrees to vote all Ordinary Shares owned by it in favor of
such amendment and the appointment of such director.
(c) If a vacancy is created due to the death, incapacitation
or resignation of one of Purchaser's Director, the Company agrees to use its
best efforts in causing the election of a substitute director, as designated by
the Purchaser, to be placed on the agenda of the Company's next Board meeting.
(d) The Company agrees that all reasonable out-of-pocket
costs and expenses incurred by Purchaser's Director in his capacity as a member
of the Board shall be borne by the Company in accordance with the Company's
reimbursement policy.
(e) Notwithstanding the Articles of Association of the
Company, the
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Company shall give the Purchaser's Director prior notice of any meeting of the
Board of Directors at the same time and in the same manner as it shall first
notify any director of such meeting, but in any event it shall be in writing and
no less than 7 days prior to such meeting, unless impractical due to the urgency
of the matter.
4.2 Best Efforts. Upon the terms and subject to the conditions
herein provided, each of Purchaser and the Company agrees to use its reasonable
best efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary, proper or advisable to consummate the
transactions contemplated by this Agreement and each other agreement
contemplated hereby including to fulfill all conditions on its part to be
fulfilled under this Agreement and each other agreement contemplated hereby. In
case at any time after the Closing Date any further action is reasonably
necessary or desirable to carry out the purposes of this Agreement and each
other agreement contemplated hereby. No party hereto will take any action for
the purpose of delaying impairing or impeding the receipt of any required
consent, authorization, order or approval or the making of any required filing.
Each party hereto shall give prompt notice to all other parties of (i) any
material failure of such party, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder, and such party shall use all reasonable efforts to remedy such
failure and (ii) the occurrence, or failure to occur, of any event which
occurrence or failure would be likely to cause any representation or warranty of
such party contained in this Agreement to be untrue or inaccurate in any
material respect any time from the date hereof to the Closing Date.
4.3 Financial Statements and Information. The Company covenants
and agrees to furnish to the Purchaser as long as the Purchaser holds at least
three and a half percent (3.5%) of the issued and outstanding share capital of
the Company, all annual and quarterly financial statements and reports filed or
required to be filed with the Commission. In addition, the Company shall provide
all information reasonably requested by the Purchaser's Director.
4.4 Indemnification.
(a) Each party (the "Indemnifying Party") shall indemnify,
defend and hold harmless, from and after the Closing Date, the other party and
each of its affiliates, officers, directors, employees, members, agents,
successors, transferees and assigns (each of the foregoing, an "Indemnified
Party") from and against all liabilities, losses, damages, claims, costs,
interest, judgments, fines, amounts paid in settlement and expenses (including
without limitation reasonable attorney's fees, whether incurred in connection
with a claim for indemnification hereunder or in connection with any third party
claim) (collectively, "Losses") incurred by any of them based upon, resulting
from or arising out of (i) the breach of any representation or warranty of the
Indemnifying Party contained in this Agreement or any other agreement
contemplated by this Agreement or (ii) the breach of any covenant or agreement
of the Indemnifying Party contained in this Agreement or any other agreement
contemplated by this Agreement, including with respect to indemnification by the
Company, and without limiting any of the foregoing, the breach of its covenant
under Section 4.5 below. No claim may be asserted nor may any action be
commenced against the Indemnifying Party, unless prompt written notice of such
claim or action is received by the Indemnifying Party describing in reasonable
detail the facts and circumstances with respect to the subject matter of such
claim or action; provided that the failure of the Indemnified Party to give the
Indemnifying Party prompt notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, except to the extent that the
Indemnifying Party is prejudiced thereby; provided that (i) the amount to be
indemnified under this Section 4.4 shall be limited to the purchase price paid
by the Purchaser for the Shares and (ii) the Company's indemnification
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obligations hereunder relating to any breach of Sections 3.10, 3.12, 3.14, 3.15,
3.16, 3.17, 3.18, 3.19, 3.20, or 3.23 shall terminate on the 180th day after the
Company has filed with the Commission a Form 20-F containing audited financial
statements for the Company for the fiscal year ended December 31, 1999 unless a
claim for indemnification shall be made with respect thereto, in which case such
indemnification obligations shall remain in effect until the full and final
resolution of such claim.
(b) The Indemnified Party shall give the Indemnifying Party
under this Section 4.4, prompt written notice (the "Indemnification Claim
Notice") of any claim, assertion, event or proceeding by or in respect of a
third party, of which such Indemnified Party has knowledge concerning any Loss
as to which such Indemnified Party may request indemnification hereunder;
provided that failure of the Indemnified Party to give the Indemnifying Party
prompt notice as provided herein shall not relieve the Indemnifying Party of any
of his, her or its obligations hereunder except to the extent that the
Indemnifying Party is prejudiced thereby. The Indemnified Party may participate
in such defense, but in such case the expenses of the Indemnified Party shall be
paid by the Indemnified Party. The Indemnified Party shall, upon reasonable
notice, provide the Indemnifying Party with access to his, her or its records
and personnel relating to any such claim, assertion, event, proceeding or matter
during normal business hours and shall otherwise cooperate with the Indemnifying
Party in the defense settlement, or resolution thereof, and the Indemnifying
Party shall reimburse the Indemnified Party for all his, her or its reasonable
out-of-pocket expenses in connection therewith. The Indemnifying Party shall not
pay, or permit to be paid, any part of any claim, or demand arising from such
asserted liability unless the Indemnified Party consents in writing (which
consent shall not be unreasonably withheld) to such payment or unless the
Indemnifying Party withdraws from or fails to maintain the defense of such
asserted liability or unless a final judgment from which no appeal may be taken
by or on behalf of the Indemnifying Party is entered against the Indemnified
Party for such liability. No settlement in respect of any third party claim may
be effected by the Indemnifying Party without the Indemnified Party's prior
written consent (which consent shall not be unreasonably withheld) unless the
settlement involves a full and unconditional release of the Indemnified Party.
If the Indemnifying Party shall fail to undertake or maintain any such defense
within thirty (30) days of receipt of the Indemnification Claim Notice, the
Indemnified Party shall have the right to undertake the defense or settlement
thereof, at the Indemnifying Party's expense. If the Indemnified Party assumes
the defense of any such claim or proceeding pursuant to this Section 4.4 it may
conduct such defense as it reasonably deems appropriate (without regard to the
availability of indemnification hereunder), and the Indemnifying Party shall be
responsible for and pay all costs and expenses of such defense, including its
compromise or settlement.
(c) The amounts for which an Indemnifying Party shall be
liable under this Section 4.4 shall be reduced by the (i) net reimbursement to
such party from any insurance proceeds received by the Indemnified Party in
connection with the circumstances giving rise to the right of indemnification
(to the extent such insurance proceeds exceed the Indemnified Party's expenses
in recouping such insurance proceeds) and (ii) net tax benefit actually realized
by such party (as reduced by any actual or projected tax detriment resulting
from receipt of the indemnification payment) directly resulting from the Losses
to which the indemnification relates.
4.5 Registration of Conversion of Preferred Shares. The Company
will ensure the registration by the Israeli Registrar of Companies of the
conversion of all the Preferred Shares in the share capital of the Company
(except for the Special Preferred Shares) into Ordinary Shares.
4.6 Approval of Certain Business Combinations. Prior to the
Closing, the Board of Directors of the Company shall resolve, that
notwithstanding Article 110 of the Company's Articles of Association ("Article
110"), in the event that Purchaser shall at any time
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become an "interested shareholder" (within the meaning of such term under
Article 110), the Company shall not be limited by virtue of Article 110 from
engaging with Purchaser in any transaction falling under paragraph (iii) of the
definition of "business combination" in Article 110, provided that in such
transaction all or the majority of the Company's shareholders are offered to
participate on the same terms. Such resolution (i) shall apply also to any
assignee of Purchaser pursuant to Section 6.9 below, and (ii) shall not be
revoked or rescinded at any time subsequent to the Closing.
4.7 The Company shall not issue any Special Preferred Shares
without issuing at the same time to Purchaser a portion of such shares issued,
which portion corresponds to Purchaser's then portion of the outstanding shares
of the Company.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligations. The respective
obligations of each party to effect the transactions contemplated by the
Agreement shall be subject to the conditions that no United States, state or
foreign governmental authority or other agency or commission or United States,
state or foreign court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, injunction or
other order (whether temporary, preliminary, or permanent) which is in effect
and has the effect of prohibiting consummation of the transactions contemplated
by this Agreement; and any filing required under U.S., state or other foreign
securities laws shall have been made prior to the Closing.
5.2 Conditions to the Obligations of the Company. The obligation
of the Company to effect the transactions contemplated by this Agreement to
occur at the Closing shall be subject to the fulfillment at or prior to the
Closing Date, of the following additional conditions:
(a) The Purchaser shall have performed its obligations under
this Agreement required to be performed by it on or prior to the Closing,
pursuant to the terms hereof.
(b) The representations and warranties of the Purchaser
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing, as if made at and as of such date, except to the
extent that any such representation or warranty is made as of a specified date
in which case such representation or warranty shall have been true and correct
as of such date.
(c) All necessary waivers, consents and approvals to or of
the transactions contemplated by this Agreement to occur at the Closing, and
each agreement contemplated hereby shall have been obtained, including without
limitation the approval of the Chief Scientist of the Israeli Ministry of
Industry and Commerce, the Investment Center.
5.3 Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to effect the transactions contemplated by this
Agreement to occur at the Closing shall be subject to the fulfillment at or
prior to the Closing, of the following additional conditions (any of which may
be waived by Purchaser in writing):
(a) The Company shall have performed its obligations under
this Agreement required to be performed by it on or prior to the Closing,
pursuant to the terms hereof.
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(b) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing, as if made at and as of such date, except to the
extent that any such representation or warranty is made as of a specified date
in which case such representation or warranty shall have been true and correct
as of such date and the Purchaser shall not have discovered any material
conflict with any such representation or warranty.
(c) Since December 31, 1997, there shall have been no event
or occurrence which has or is likely to have a Material Adverse Effect on the
Company.
(d) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of a registration rights agreement between
the Company and Purchaser, in the form of Exhibit A hereto (the "Registration
Rights Agreement"), and any and all other agreements, documents, certificates or
instruments contemplated by this Agreement and any of the foregoing.
(e) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of amendments to the Warrant Agreements dated
September 15, 1997 between the Company and each purchaser identified on Schedule
1 to the Note and Warrant Purchase Agreement dated September 15, 1997 among the
Company, Paradigm Geophysical Corp., a Delaware corporation, and such
purchasers, as amended ("1997 Warrants"), in accordance with the term sheet
attached as Exhibit D hereto ("Amendment to 1997 Warrants").
(f) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of an amendment to the Share Purchase
Agreement dated July 1, 1996 among the Company and the purchasers identified on
Schedule 1 thereto, as amended ("1996 Purchase Agreement"), in accordance with
the term sheet attached as Exhibit E hereto ("Amendment to 1996 Purchase
Agreement").
(g) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of an amendment to the Share Purchase
Agreement dated June 1, 1995 among the Company and the purchasers identified on
Schedule 1 thereto, as amended ("1995 Purchase Agreement"), in accordance with
the term sheet attached as Exhibit F hereto ("Amendment to 1995 Purchase
Agreement").
(h) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of amendments to the Warrant Certificates
dated July 22, 1994 between the Company and each holder thereof, as amended
("1994 Warrants"), in accordance with the term sheet attached as Exhibit G
hereto ("Amendment to 1994 Warrants").
(i) The Purchaser shall have received on or prior to the
Closing Date fully executed copies of an amendment to the Shareholders Agreement
dated June 7, 1995 among the Company and certain shareholders of the Company, as
amended (the "Shareholders Agreement"), which provides for the termination of
the Shareholders Agreement upon the Closing ("Amendment to Shareholders
Agreement").
(j) The Purchaser shall have received on or prior to the
Closing Date a legal opinion delivered by the Company's U.S. counsel dated as of
the Closing Date, in substantially the form of Exhibit B hereto.
(k) The Purchaser shall have received on or prior to the
Closing Date a legal opinion delivered by the Company's Israeli counsel dated as
of the Closing Date, in
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substantially the form of Exhibit C hereto.
(l) The Purchaser shall have received on or prior to the
Closing Date a copy of minutes or resolutions of the Board, which shall not have
been rescinded or modified, a) approving the issuance of the Ordinary Shares to
the Purchaser in accordance with the terms and conditions of the Purchase
Agreement, and all other terms and conditions of this Agreement and all
schedules and exhibits hereto, as certified by the Company's Secretary (b) as
provided in Section 4.6 above, and (c) the appointment of Mr. Xxxxxxx Xxxxxx (or
any other person designated by Purchaser in his stead) to the Board of Directors
of the Company.
(m) The Purchaser shall have received on or prior to the
Closing Date a certificate of the Company's Secretary confirming the inscription
of the Purchaser in the Company's register of members as the owner of the
Ordinary Shares issued according to this Agreement.
(n) The Purchaser shall have received on or prior to the
Closing Date a copy of the share issuance form to be filed with the Company's
Registrar, signed by the Company's Secretary. The Company shall have such form
duly stamped and filed with the Registrar of Companies within 30 days after the
Closing Date.
(o) The Purchaser shall have received on or prior to the
Closing Date a certificate of the Company's Chief Executive Officer or Chief
Financial Officer dated the Closing Date, in substantially the form of Exhibit H
hereto, certifying the satisfaction by the Company of all conditions precedent
set forth in this Section 5.3.
(p) All necessary waivers, consents and approvals to or of
the transactions contemplated by this Agreement to occur on or prior to the
Closing, or each other agreement contemplated shall have been obtained on or
prior to the Closing Date, including without limitation the approval of the
Chief Scientist of the Israeli Ministry of Industry and Commerce, Investment
Center, the consent of Bank Hapoalim B.M. and the Bank for Industrial
Development in Israel Ltd., and, with respect to registration rights to be
granted to Purchaser under the Registration Rights Agreement, the approval of
all securityholders and warrantholders of the Company holding registration
rights, in accordance with the terms of such registration rights.
(q) There shall have been no lawsuit, filed or threatened,
which challenges this Agreement and all transactions contemplated hereby or
seeks to impose any limitation on Purchaser's purchase of the Shares.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. This Agreement may be amended by the parties
hereto. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
6.2 Waiver. Any waiver of or failure to insist on strict
compliance with any representation, warranty, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of
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such party.
6.3 Termination. This Agreement may be terminated at any time
prior to the Closing without further Board or shareholder action of either
party:
(i) by the mutual written consent of both parties;
(ii) by the Company or Purchaser, if the closing conditions
to the Closing have not been satisfied or waived by noon on may 31, 1999, unless
the failure to satisfy such conditions is a result of any breach by such party.
6.4 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally, sent by commercial carrier or
registered or certified mail (postage prepaid, return receipt requested) or
transmitted by facsimile with automated receipt confirmation to the parties at
the following addresses and numbers:
(a) If to Purchaser, to:
Shamrock Holdings, Inc.
0000 Xxxxxxxx Xxxxx, 0xx Xxxxx
X.X. Xxx 0000
Xxxxxxx, California 91510-7774
Attention: Xxxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
with a copy to:
Zellermayer & Pelossof, Advocates
Xxxxxx Xxxxx
00 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxx Xxxx 00000, Israel
Attention: Xxxxxxx Xxxxxxxxxxx, Adv.
Fax No.: 000-000-0-000-0000
(b) If to the Company, to:
Paradigm Geophysical Ltd.
Xxxxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx
X.X.X. 0000
Herzliya B 00000, Xxxxxx
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Attention: Xxxxx Xxxxx
Fax No.: 000-000-0-000-0000
with a copy to:
Efrati, Galili & Co.
0 Xxxxxxxxx Xxxxxx
Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx, Adv.
Fax No.: 000-000-0-000-0000
with a copy to:
Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
6.5 Headings; Agreement. The headings contained in this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement. The term "Agreement" for purposes of representations and warranties
hereunder shall be deemed to include the exhibits hereto to be executed and
delivered by a party.
6.6 Publicity. So long as this Agreement is in effect and except
as required by law, the parties hereto shall not, and shall cause their
affiliates not to, issue or cause the publication of any press release or other
announcement with respect to the transactions contemplated by this Agreement or
the other agreements contemplated hereby without the consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
6.7 Entire Agreement. This Agreement (including all exhibits
hereto) the entire agreement among the parties and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
6.8 Conveyance Taxes. The Company agrees to assume liability for
and to hold the Purchaser harmless against any sales, use, transfer, stamp, and
value added taxes, registration, recording or other fees, and any similar taxes
incurred as a result of the issuance and sale of the Shares as contemplated
hereby.
6.9 Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Purchaser shall be permitted to
assign any of its rights, interests or obligations under this Agreement, whether
prior or subsequent to the Closing, to (i) Trefoil Euro Fund, L.P., (ii) any
entity in which 30% or more of its voting or equity securities are owned,
directly or indirectly, by Shamrock Holdings, Inc. ("SHI"), any executive
officers of SHI, and/or any member of the Xxx X. Xxxxxx family (or any trust for
his/her benefit), or (iii) any entity in which SHI or any of the foregoing
referenced in (i) or (ii) of this Section 6.10 serves as a general partner or
manager; provided, however, that the Purchaser shall not assign this Agreement
to any entity which derives revenues, in any material amount, from the oil and
natural gas exploration and/or production business or the GeoSeis software
business. Except as provided above, neither this Agreement nor any of the
rights, interests or obligations shall be assigned by either party hereto
without the prior written consent of the other party.
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6.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
6.11 Governing Law. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York, without
reference to the conflict of laws principles thereof.
6.12 Third Party Beneficiaries. This Agreement is not intended to
confer upon any other person any rights or remedies hereunder.
6.13 Costs and Expenses. Each party will pay its own costs and
expenses incurred in connection with the transactions contemplated hereby,
except that, at the Closing, the Company shall pay all reasonable fees and
expenses of legal counsel to Purchaser in an amount not to exceed $150,000. The
Company shall also pay all stamp issuance taxes, fees of the Company's transfer
agent and expenses of filing with the Israeli Registrar of Companies.
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IN WITNESS WHEREOF, the Purchaser and the Company have caused
this Agreement to be duly signed as of the date first written above.
PARADIGM GEOPHYSICAL LTD.
an Israeli corporation
By: /s/ Xxxxx Xxxxx
Name:
Title:
SHAMROCK HOLDINGS INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxx
Name:
Title:
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