EXHIBIT 2
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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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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.
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(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 l.l(a) hereof and the
documents specified in Section 5.3 below.
1.3 The Closing.
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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 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. Purchasis 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
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
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, thShareholders 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 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.
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(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 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 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.
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 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, leaseor 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 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 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 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
Co(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 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.
(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 l, 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 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 receion 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 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
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.
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 expensesof filing with the Israeli Registrar of
Companies.
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: Xxxxx Xxxxx
Title: President and Chief
Executive Officer
SHAMROCK HOLDINGS INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Gold
----------------------------------
Name: Xxxxxxx X. Gold
Title: President
EXHIBITS
Exhibit A Registration Rights Agreement
Exhibit B Form of Legal Opinion of Company's U.S. Counsel
Exhibit C Form of Legal Opinion of Company's Israeli Counsel
Exhibit D Amendment to 1997 Warrants
Exhibit E Amendment to 1996 Purchase Agreement
Exhibit F Amendment to 1995 Purchase Agreement
Exhibit G Amendment to 1994 Warrants
Exhibit H Form of Closing Certificate
SCHEDULES
Schedule 3.1 Subsidiaries and Jurisdictions of Organization
Schedule 3.2 Capitalization
Schedule 3.10 Litigation
Schedule 3.12 Intellectual Property
Schedule 3.13 Industrial Company Certificate
Schedule 3.14 Compliance with Laws
Schedule 3.18 Material Contracts
Schedule 3.19 Financials
Schedule 3.20 Undisclosed Liabilities