EXHIBIT 99.2
FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of May
21, 2002, between Xxxxxxxxxx B.V., a company formed under the laws of The
Netherlands ("Parent"), and the undersigned shareholder (the "Shareholder") of
Paradigm Geophysical Ltd., an Israeli company (the "Company").
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have entered into
an Agreement of Merger, dated the date hereof (the "Merger Agreement"), which
provides for the merger (the "Merger") of FP Acquisition Ltd., an Israeli
company and wholly owned subsidiary of Parent ("Merger Sub"), with and into the
Company. Pursuant to the Merger, all outstanding ordinary shares, nominal value
NIS 0.5 per share, of the Company ("Ordinary Shares") will be converted into the
right to receive US$5.15 in cash, without interest thereon, as set forth in the
Merger Agreement;
B. Shareholder is the Beneficial Owner (as defined below) of such number of
Ordinary Shares and Ordinary Shares issuable upon exercise of outstanding
options and/or warrants as is indicated on the signature page of this Agreement;
and
C. In consideration of the execution of the Merger Agreement by Parent,
Shareholder (in its, his or her capacity as such) agrees to vote the Shares (as
defined below) in favor of the Merger on the terms and subject to the conditions
set forth in this Agreement, and otherwise comply with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
1. Certain Definitions. Capitalized terms not defined herein shall have the
meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "Agreement" shall have the meaning set forth in the Preamble.
(b) "Beneficially Owned" or "Beneficial Ownership" means, with respect
to any securities, having beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act, disregarding the
phrase "within 60 days" in paragraph (d)(1)(i) thereof), including pursuant
to any agreement, arrangement or understanding, whether or not in writing.
(c) "Beneficial Owner" means, with respect to any securities, a Person
that has Beneficial Ownership of such securities.
(d) "Company" shall have the meaning set forth in the Preamble.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(f) "Expiration Date" shall have the meaning set forth in Section 7.
(g) "Grantees" shall have the meaning set forth in Section 3(a).
(h) "Merger" shall have the meaning set forth in the Recitals.
(i) "Merger Agreement" shall have the meaning set forth in the
Recitals.
(j) "Merger Sub" shall have the meaning set forth in the Recitals.
(k) "Ordinary Shares" shall have the meaning set forth in the
Recitals.
(l) "Parent" shall have the meaning set forth in the Preamble.
(m) "Person" means any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) Governmental
Entity.
(n) "Shareholder" shall have the meaning set forth in the Preamble.
(o) "Shares" means: (i) all Ordinary Shares and other securities of
the Company (including all options, warrants and other rights to acquire
ordinary shares) Beneficially Owned by Shareholder as of the date of this
Agreement; and (ii) all additional Ordinary Shares and other securities of
the Company (including all additional options, warrants and other rights to
acquire Ordinary Shares) of which Shareholder acquires Beneficial Ownership
during the period from the date of this Agreement through the Expiration
Date.
2. Agreement to Vote Shares.
(a) At every meeting of the shareholders of the Company called, and at
every postponement or adjournment thereof, and on every action or approval by
written consent of the shareholders of the Company, Shareholder (in his, her or
its capacity as such) irrevocably agrees to cause the Shares to be voted (i) in
favor of approval of the Merger, the Merger Agreement and the other transactions
contemplated by the Merger Agreement and (ii) against (A) any proposal made in
opposition to or in competition with the Merger, the Merger Agreement or any of
the transactions contemplated by the Merger Agreement, (B) any Takeover
Proposal, and (C) any change in the management or board of directors of the
Company (other than in connection with the Merger).
(b) The obligations of Shareholder specified in this Section 2 shall
apply whether or not (i) the Board of Directors or any committee thereof shall
withdraw, modify or change (including by amendment or supplement to the Proxy
Statement), or adopt or approve any resolution to, or publicly disclose its
intention to, withdraw, modify or change (including by amendment or supplement
to the Proxy Statement), the Prototype Board Recommendation, or (ii) the Company
breaches any of its representations, warranties, agreements or covenants set
forth in the Merger Agreement.
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3. Irrevocable Proxy.
(a) In furtherance of the agreements contained in Section 2 hereof,
Shareholder hereby irrevocably appoints the directors on the board of directors
or other governing body of Parent (the "Grantees"), and each of them
individually, and any individual who shall hereafter succeed to any such
position, as the sole and exclusive attorneys-in-fact and proxies of
Shareholder, for and in the name, place and stead of Shareholder, with full
power of substitution and resubstitution, to vote, grant a consent or approval
in respect of, or execute and deliver a proxy to vote, the Shares (i) in favor
of the approval of the Merger, the Merger Agreement and the other transactions
contemplated by the Merger Agreement, (ii) against any Takeover Proposal or any
other matter referred to in Section 2(a)(ii) and (iii) in the discretion of the
Grantees, with respect to any proposed postponements or adjournments of any
annual or special meeting of the shareholders of the Company held in connection
with any of the foregoing.
(b) Shareholder represents and warrants to Parent that no proxies
heretofore given in respect of any or all of the Shares are irrevocable, and
that any such proxies are hereby revoked.
(c) Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 3 is given in connection with, and in consideration of, the
execution of the Merger Agreement by Parent, and that such irrevocable proxy is
given to secure the performance of the duties of Shareholder under this
Agreement. Shareholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked except as
provided in this Agreement. Shareholder hereby ratifies and confirms all that
the Grantees may lawfully do or cause to be done by virtue hereof. The
irrevocable proxy contained herein is intended to be irrevocable in accordance
with Israeli law and the provisions of Section 212(e) of the General Corporation
Law of the State of Delaware.
4. Covenants.
(a) No Transfer of Shares. During the period from the date of this
Agreement through the Expiration Date, Shareholder shall not, without the prior
written consent of Parent, sell, assign, transfer, or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the direct or indirect sale, assignment, transfer, or other
disposition of, Beneficial Ownership of any Shares.
(b) No Transfer of Voting Rights. Except to the extent necessary to
vote the Shares in accordance with Section 2 and/or Section 3, during the period
from the date of this Agreement through the Expiration Date, Shareholder shall
not deposit (or permit the deposit of) any Shares in a voting trust or grant any
proxy or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Shares.
(c) Other Actions. Shareholder shall not take, agree in writing or
otherwise to take, or propose or commit to take any action (i) which could
reasonably be expected to make any of the representations or warranties of
Shareholder contained in this Agreement, untrue or incorrect as of the date when
made or as of the Closing Date, (ii) which could reasonably be
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expected to result in any of the conditions set forth in Article V of the Merger
Agreement not being satisfied, (iii) inconsistent with the transactions
contemplated by this Agreement or (iv) to challenge, question or call into doubt
the validity or enforceability of the Merger, this Agreement or any of the
transactions contemplated hereby or by the Merger Agreement; provided that
nothing in this sentence shall require Shareholder to operate its business (as
distinguished from actions taken in Shareholder's capacity as a shareholder of
the Company or by any officer, director, employee, agent or representative of
Shareholder in his or her capacity as a director or officer of the Company)
outside of the ordinary course of business consistent with past practice.
Notwithstanding the restrictions set forth in this Section 4, any officer,
director, employee or agent of Shareholder serving as an officer or director of
the Company may take any action in such capacity required by his fiduciary
duties under applicable law to the shareholders of the Company or which is
explicitly permitted under the Merger Agreement.
5. No Solicitation. From the date hereof continuing through the
Expiration Date, Shareholder shall not, nor shall it permit any of its
subsidiaries or affiliates to, nor shall it or any of its subsidiaries or
affiliates authorize any director, officer, employee or agent of Shareholder or
any of its subsidiaries or affiliates or, whether on Shareholder's or any of its
subsidiaries' or affiliates' behalf or for the benefit of any of the foregoing,
any investment banker, attorney, accountant or other advisor or representative
of Shareholder or any of its subsidiaries or affiliates to, directly or
indirectly: (i) solicit, initiate, negotiate or encourage, or take any other
action to facilitate the making of any proposal for (or which may reasonably be
expected to lead to) any Takeover Proposal or (ii) propose, continue, enter into
or participate in any discussions or negotiations regarding any of the
foregoing, or furnish to another Person any confidential information with
respect to the Company's or any of its subsidiaries' business, properties or
assets in connection with or relating to any of the foregoing, or where it is
likely to lead to any of the foregoing, or otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage, an effort or attempt by
any Person (other than Parent and its affiliates) to do or seek any of the
foregoing. Shareholder shall, and shall cause its subsidiaries and affiliates
and its and its subsidiaries' and affiliates' officers, directors, employees,
agents and representatives, including any investment banker, attorney,
accountant or other advisor or representative of Prototype or any of its
subsidiaries or affiliates, to, immediately cease all existing activities,
discussions and negotiations with any parties conducted heretofore with respect
to any Takeover Proposal. Notwithstanding the restrictions set forth in this
Section 5, each of the Company and any Person serving as an officer or director
of the Company, including any officer, director, employee or agent of
Shareholder serving as an officer or director of the Company, may take any
action in such capacity required by his fiduciary duties or which is explicitly
permitted under the Merger Agreement.
6. Representations and Warranties.
(a) Ownership of Shares. Shareholder Beneficially Owns, and is the sole
owner of record of, the Shares indicated on the signature page of this
Agreement. Shareholder has, and will have at all times from the date hereof
until the Expiration Date, sole voting power, sole power of disposition and sole
power to issue instructions with respect to the matters set forth in Section
2(a) and Section 3, subject to the limitations, qualifications and restrictions
on such rights mentioned above. Without limiting the foregoing, none of the
Shares is subject to any voting trust or other agreement, proxy or other
arrangement with respect to the voting of such
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Shares (except as provided in Sections 2 and 3). Except for the Shares indicated
on the signature page of this Agreement, Shareholder does not Beneficially Own
or have any other direct or indirect interest in any (x) shares of capital stock
or voting securities of the Company, (y) securities of the Company convertible
into or exchangeable for shares of capital stock or voting securities of the
Company or (z) options, warrants or other rights to acquire from the Company or
any other Person any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of the Company.
(b) Authority. The execution, delivery and performance by Shareholder of
this Agreement and the consummation by Shareholder of the transactions
contemplated hereby are within Shareholder's corporate powers and have been duly
authorized by all necessary corporate action on the part of Shareholder. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
valid and binding Agreement of Shareholder, enforceable against it in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(c) No Violation. The action to be taken in the irrevocable proxy
granted pursuant to Section 3 and the execution, delivery and performance by
Shareholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) contravene, conflict with, or result
in any violation or breach of any provision of the articles of incorporation,
bylaws or other organizational documents of Shareholder, (ii) contravene,
conflict with, or result in any violation or breach of any Order applicable to
Shareholder or any of its property or assets, (iii) require any consent by any
Person under, constitute (with or without notice or lapse of time or both) a
default under, or cause or permit the amendment, modification, termination,
cancellation or acceleration or other change of any right or obligation or the
loss of any benefit to which Shareholder is entitled under any provision of any
Contract binding on Shareholder, where, in the case of (i), (ii) or (iii) above,
such contravention, conflict, violation or breach, or the absence of such
consent or such default, would have a material adverse effect on the ability of
Shareholder to satisfy its obligations hereunder.
(d) Parent's Reliance. Shareholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon Shareholder's
execution, delivery and performance of this Agreement. Shareholder acknowledges
that the irrevocable proxy granted in Section 3 is granted in consideration of
the execution and delivery of the Merger Agreement by Parent.
(e) Shareholder's Reliance. Parent understands and acknowledges that
Shareholder is entering into this Agreement in reliance upon Parent's execution,
delivery and performance of the Merger Agreement in accordance with its terms as
in effect on the date hereof.
7. Termination. This Agreement and the irrevocable proxy granted hereunder
shall terminate and shall have no further force or effect as of the earlier to
occur of (i) such date and time as the Merger Agreement shall have been
terminated pursuant to Article VI thereof, (ii) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement, (iii) such date and time as the Merger Agreement shall
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have been amended by the parties thereto in accordance with its terms in a
manner adverse to Shareholder in any material respect (it being agreed that any
amendment to the Merger Agreement (A) reducing the Per Share Merger
Consideration or (B) changing the type of consideration constituting the Per
Share Merger Consideration, shall be deemed to be materially adverse to
Shareholder for the purposes of this Section 7), and (iv) a material breach of
this Agreement by Parent which is not cured by Parent promptly after receipt of
written notice of such material breach from Shareholder (such date, the
"Expiration Date"). In addition thereto, this Agreement shall automatically
terminate if the Merger Agreement has not been terminated pursuant to Article VI
thereof, or the Merger has not become effective, on or before September 30,
2002. Xxx xxxxxxxxxx xx Xxxxxxxx 0(x), (x), (x), (x) shall survive any
termination of this Agreement, and the provisions of Section 9(d) shall survive
a termination of this Agreement pursuant to Section 7(ii).
8. Appraisal Rights; Prototype Warrants. Shareholder hereby irrevocably
waives any and all rights of appraisal with respect to the Merger or rights to
dissent from the Merger that Shareholder may have or hereafter acquire.
Shareholder hereby irrevocably consents and agrees that any Prototype Warrants
held or hereafter acquired by such Shareholder shall be terminated at the
Effective Time with no payment therefor.
9. Miscellaneous.
(a) Further Assurances. Each of Shareholder (in his, her or its capacity
as such) and Parent shall, from time to time, execute and deliver, or cause to
be executed and delivered, such additional or further consents, proxies,
instruments or other documents, and to take such other actions, as Parent may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
(b) Expenses. All costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
(c) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court or other Governmental Entity of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. Upon such a determination, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
(d) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon, inure to the benefit of and be
enforceable by, the parties hereto and their permitted assigns and their
respective successors, heirs, agents, representatives, trust beneficiaries,
attorneys, affiliates and associates and all of their respective predecessors,
successors, permitted assigns, heirs, executors and administrators, but, except
as otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
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(e) Amendments; No Waivers. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or, in the
case of a waiver, by each party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
(f) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent would be irreparably harmed and that there would be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent in respect of such violation,
Parent shall be entitled, without posting a bond or similar indemnity, to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof.
(g) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given (and shall be deemed to have been
duly given upon receipt) if delivered personally, telecopied, sent by
nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
If to Parent:
c/o Fox Xxxxx & Company, LLC
000 Xxxxx Xxxx -- Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention Xxxx X. Xxx
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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and to:
Xxxxxx, Xxxxxxxxx, Xxxx & Xx.
00 Xxxx Xxxxxx Silver St.
52506 Ramat-Gan, Israel
Attention: Xxxxxxxx X. X. Xxxxx
Facsimle: (000-0) 000-0000
If to Shareholder:
To the address for notice set forth on the signature page hereof.
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt.
(h) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
(i) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
court located in the State of Delaware or any Delaware state court, and each of
the parties hereby, on behalf of themselves and their subsidiaries and
affiliates, (i) consents and submits itself and its property to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding, (ii) consents to and submits itself and
its property to the personal jurisdiction of such courts (and of the appropriate
appellate courts therefrom) in any such suit, action or proceeding, and (iii)
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 9(i) shall be deemed effective service of process on such
party.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Entire Agreement. This Agreement and the irrevocable proxy granted
in Section 3 constitute the entire agreement between the parties with respect to
the subject matter of this Agreement and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement..
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(l) Effect of Headings. The section headings are for convenience only
and shall not affect the construction or interpretation of this Agreement.
(m) Counterparts; Effectiveness; Benefit. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies,
obligations, or liabilities hereunder upon any Person other than the parties
hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
SHAREHOLDER:
By:
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Signature
----------------------------------------
Print Address
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Telephone
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Facsimile No.
Shares:
---------------------- Ordinary Shares
---------------------- Ordinary Shares
issuable upon exercise of outstanding
options
---------------------- Ordinary Shares
issuable upon exercise of outstanding
warrants
[SHAREHOLDER SIGNATURE PAGE TO VOTING AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
XXXXXXXXXX B.V.
By:
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Name:
Title:
[PARENT SIGNATURE PAGE TO VOTING AGREEMENT]
