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Exhibit (c)(3)
SUPPORT AGREEMENT (this "Agreement"), dated as of March 8,
1998, by and between Western Atlas Inc., a Delaware corporation ("Parent"), and
Xxxxx X. Xxxxxxxxxx ("Seller").
WHEREAS, concurrently herewith, Parent, WAI Acquisition Corp.
(the "Purchaser"), a Delaware corporation and a subsidiary of Parent, and 3-D
Geophysical, Inc. (the "Company"), a Delaware corporation, are entering into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement",
which term shall not include any amendment to such Agreement which decreases the
Offer Price or changes the form of consideration payable in the Offer, unless
Seller consents to the inclusion of such amendment in such term). Capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement, pursuant to which the Purchaser agrees to make a tender offer
(the "Offer") for all outstanding shares of common stock, par value $.01 per
share (the "Shares"), of the Company, at $9.65 per share (the "Offer Price") net
to the seller in cash, to be followed by a merger (the "Merger") of the
Purchaser with and into the Company;
WHEREAS, as of the date hereof, Seller beneficially owns
directly ______________ Shares (the "Owned Shares", and together with any Shares
acquired after the date hereof and prior to the termination of the Offer,
whether upon the exercise of options, conversion of convertible securities or
otherwise, the "Tender Shares");
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement and make the Offer, Parent and the Purchaser have required that
Seller agree, and Seller hereby agrees, to enter into this Agreement; and
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration given to each party hereto, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. Agreement to Vote.
1.1 Voting. Seller hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the Merger;
(b) vote the Tender Shares against any action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (c) vote the Tender
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the Offer, including, but not
limited to: (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries or a reorganization, recapitalization or
liquidation of the Company and its subsidiaries; (iii) any change in the
management or board of directors of the Company, except as otherwise agreed to
in writing by the Purchaser; (iv) any material change in the present
capitalization or dividend policy of the Company; or (v) any other material
change in the Company's corporate structure or business. Seller hereby revokes
any proxy previously granted
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by him with respect to the Tender Shares. Seller hereby permits Parent and the
Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the Securities and Exchange
Commission) his identity and ownership of the Tender Shares and the nature of
his commitments, arrangements and understandings under this Agreement.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(i) Seller hereby irrevocably grants to, and appoints,
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx, or either of them, in their respective
capacities as officers or directors of Parent, and any individual who shall
hereafter succeed to any such office or directorship of Parent, and each of them
individually, Seller's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Seller, to vote the
Tender Shares in favor of the Merger and other transactions contemplated by the
Merger Agreement, against any Acquisition Transaction and otherwise as
contemplated by Section 1.2.
(ii) Seller represents that any proxies heretofore given in
respect of the Tender Shares are not irrevocable, and that any such proxies are
hereby revoked.
(iii) Seller understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon Seller's execution and
delivery of this Agreement. Seller hereby affirms that the irrevocable proxy set
forth in this Section 1.2 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of Seller under this Agreement. Seller hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Seller hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212(e) of the Delaware General Corporation Law.
1.3 No Inconsistent Arrangements. Seller hereby covenants and
agrees that, except as contemplated by this Agreement and the Merger Agreement,
it shall not (i) except to the Company, transfer (which term shall include,
without limitation, any sale, gift, pledge or other disposition), or consent to
any transfer of, any or all of the Tender Shares or any interest therein, (ii)
except with the Company, enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Tender Shares or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Tender Shares, (iv) deposit the Tender
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Tender Shares or (v) take any other action that would in any way
restrict, limit or interfere with the performance of his obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement or which
would make any representation or warranty of Seller hereunder untrue or
incorrect.
1.4 No Solicitation. Seller hereby agrees that Seller shall
not, and shall not permit or authorize any of his affiliates, representatives or
agents to, directly or indirectly, encourage, solicit, explore, participate in
or initiate discussions or negotiations with, or provide or disclose any
information to, any corporation, partnership, person or other entity or group
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(other than Parent, the Purchaser or any of their affiliates or representatives)
concerning any Acquisition Transaction or enter into any agreement, arrangement
or understanding requiring the Company to abandon, terminate or fail to
consummate the Merger or any other transactions contemplated by the Merger
Agreement. Seller will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
Acquisition Transaction. From and after the execution of this Agreement, Seller
shall immediately advise Parent in writing of the receipt, directly or
indirectly, of any inquiries, discussions, negotiations or proposals relating to
an Acquisition Transaction, identify the offeror and furnish to Parent a copy of
any such proposal or inquiry, if it is in writing, or a written summary of any
oral proposal or inquiry relating to an Acquisition Transaction. Seller shall
promptly advise Parent in writing of any development relating to such proposal,
including the results of any discussions or negotiations with respect thereto.
Any action taken by the Company or any member of the Board of Directors of the
Company including, if applicable, Seller acting in such capacity, in accordance
with the proviso to the second sentence of Section 6.10(a) of the Merger
Agreement shall be deemed not to violate this Section 1.5.
1.5 Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, Seller hereby agrees to use all reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement and the Merger Agreement. Seller shall promptly consult with
Parent and provide any necessary information and material with respect to all
filings made by Seller with any Governmental Entity in connection with this
Agreement and the Merger Agreement and the transactions contemplated hereby and
thereby.
1.6 Waiver of Appraisal Rights. Seller hereby waives any
rights of appraisal or rights to dissent from the Merger that he may have.
2. Expiration. This Agreement and Seller's obligation to
tender provided hereto shall terminate on the earlier of the payment for the
Shares pursuant to the Offer and the termination of the Merger Agreement in
accordance with its terms.
3. Representation and Warranties. Seller hereby represents
and warrants to Parent as follows:
(a) Title. Seller has good and valid title to the
Tender Shares, free and clear of any lien, pledge, charge,
encumbrance or claim of whatever nature and, upon the purchase
of the Tender Shares by the Purchaser, Seller will deliver
good and valid title to the Tender Shares, free and clear of
any lien, charge, encumbrance or claim of whatever nature.
(b) Ownership of Shares. On the date hereof, the
Owned Shares are owned of record or beneficially by Seller
and, on the date hereof, the Owned Shares constitute all of
the Shares owned of record or beneficially by Seller. Seller
has sole voting power and sole power of disposition with
respect to all of
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the Owned Shares, with no restrictions, subject to applicable
federal securities laws, on Seller's rights of disposition
pertaining thereto.
(c) Power; Binding Agreement. Seller has the legal
capacity, power and authority to enter into and perform all of
his obligations under this Agreement. The execution, delivery
and performance of this Agreement by Seller will not violate
any other agreement to which Seller is a party including,
without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and
validly executed and delivered by Seller and constitutes a
valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms.
(d) No Conflicts. Other than in connection with or in
compliance with the provisions of the Exchange Act and the HSR
Act, no authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the
consummation by Seller of the transactions contemplated by
this Agreement. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby will not constitute a breach, violation or
default (or any event which, with notice or lapse of time or
both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or
result in the creation of any lien, encumbrance, pledge,
charge or claim upon any of the properties or assets of Seller
under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which Seller
is a party or by which his properties or assets are bound.
(e) No Finder's Fees. No broker, investment banker,
financial advisor or other person is entitled to any broker's,
finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of Seller.
4. Additional Shares. Seller hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new
Shares acquired by Seller, if any, after the date hereof.
5. Further Assurances. From time to time, at the Parent's
request and without further consideration, Seller shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
6.1 Non-Survival. The representations and warranties made
herein shall terminate upon Seller's sale of the Tender Shares to the Purchaser
in the Offer, other than Seller's representation and warranty in Section 3.2(a),
which shall survive the sale of the Tender Shares and the termination of this
Agreement following such sale.
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6.2 Entire Agreement; Assignment. This Agreement (i)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) shall not be assigned by operation of law or otherwise, provided that
Parent may assign its rights and obligations hereunder to any direct or indirect
wholly owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given by hand
delivery, telegram, telex or telecopy or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
If to Seller:
copy to Seller's Counsel:
If to Parent:
Western Atlas Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
6.6 Specific Performance. Seller recognizes and acknowledges
that a breach by him of any covenants or agreements contained in this Agreement
will cause Parent to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore Seller agrees that in the event
of any such breach Parent shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
6.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
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IN WITNESS WHEREOF, Parent and Seller have caused this
Agreement to be duly executed as of the day and year first above written.
WESTERN ATLAS INC.
By:
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Name:
Title:
SELLER
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Name:
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