EXHIBIT 8
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.
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(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.
3. Irrevocable Proxy.
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(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.
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(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 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.
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(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 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 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.
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(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.
(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
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.
(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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed on the day and year first above written.
SHAREHOLDER:
SHAMROCK HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Shamrock Holdings Inc.
0000 Xxxxxxxx Xxxxx XXX 0000
Xxxxxxx, Xxxxxxxxxx 00000
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Print Address
Telephone 000 000 0000
Facsimile No. 000 000 0000
Shares:
877,193 Ordinary Shares
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0 Ordinary Shares issuable
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upon exercise of outstanding options
0 Ordinary Shares issuable
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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: Xxxx X. Xxx
------------------------
Name: Xxxx X. Xxx
[PARENT SIGNATURE PAGE TO VOTING AGREEMENT]
