1
- 1 -
SETTLEMENT AND RELEASE AGREEMENT
This SETTLEMENT AND RELEASE AGREEMENT ("AGREEMENT") is entered into as of the
date last signed below by and between XXXXXX XXXXXXXXX, an individual
("XXXXXXXXX"), NEW DIMENSION SOFTWARE LTD., an Israeli corporation and all of
its subsidiaries and affiliated companies including, without limitation, New
Dimension Software Inc. ("NDS"), XXXX X. XXXXX, an individual ("EINAV"), DALLA
XXXXXXXX an individual ("XXXXXXXX"), EINAV COMPUTER SYSTEMS LTD., an Israeli
corporation ("ECS"), XXXXXX XXXXXX, an individual ("XXXXXX"), XXXXXX XXXXXX, an
individual ("XXXXXX"), XXX XXXXXX, an individual ("TALMOR").
WHEREAS Xxxxxxxxx, NDS, Einav, Xxxxxxxx and ECS have been involved in a
variety of business and employment relationships, which the Parties
wish to terminate; and
WHEREAS Xxxxxxxxx and other Parties to this Agreement have been engaged in
several litigation, lawsuits and court proceedings, listed on EXHIBIT
A hereto; and
WHEREAS NDS and BMC Software Inc., a corporation organized under the laws of
Delaware, U.S("BMC"), are negotiating a business combination (the
"PROPOSED TRANSACTION"). A proposed draft Stock Purchase and Tender
Agreement (the "DRAFT AGREEMENT") is attached hereto in EXHIBIT "B".
All Parties to this Agreement hereby represent that they wish that the
Proposed Transaction will occur and be successful.
WHEREAS the Parties now desire to finally compromise, settle and discharge all
disputes, claims, controversies, demands, actions or causes of action
that they may have against the any of the other parties, all as set
forth herein.
NOW THEREFORE, in consideration of the promises, covenants and other good and
valuable consideration set forth herein, it is hereby agreed by and
between the Parties as follows:
1.1. PREAMBLE, SCHEDULE AND CAPTIONS
The Preamble and Schedules to this Agreement constitute an integral
part hereof. The Agreement's captions are provided for the sake of
convenience only and shall not be used to constitute the provisions
hereof.
2
-2-
2.2. DEFINITIONS
IN THIS AGREEMENT:
"EFFECTIVE DATE" - this Agreement is conditioned upon, and shall be
effective only on the Closing of the Proposed Transaction (as such a
term is defined in the Draft Agreement).The Closing date of the
Proposed Transaction shall be deemed as the Effective date of this
Agreement. Should the Proposed Transaction not Close prior to the
Termination Date, all promises, covenants and releases given in this
Agreement, and the Agreement itself, shall be null, void and
unenforceable and with no further force or effect.
"TERMINATION DATE" June 30, 1999, provided the Effective Date does not
occur prior thereto;
"DIRECTORS" - shall mean each and any of NDS past and present
directors.
"RELEASEES" - shall mean each and any of the parties to this Agreement,
XXXXXXX XXXXXX, an individual, the Directors and any and all of their
present and past agents, professional and other advisors and
consultants, including without limitation, all of their auditors and
legal counsel, and all of any of the above past and present officers
employees and agents, and their heirs, executors, administrators,
successors; provided, however, that each of Rafi Oz and Xxxxxxx Xxxxxx
can not be a Releasee and will not benefit from any of the terms of
this Agreement until the date in which such a person executes a release
agreement releasing all the parties to this Agreement from any and all
claims, all in terms which are similar to the terms of this release
Agreement; and further provided that each person who is not a party to
this Agreement can not be a Releasee and will not benefit from any of
the Release terms of this Agreement if such a person files or submits
any claim, or asserts any Cause of Action against any party to this
Agreement ."LITIGATION" - the litigation listed in EXHIBIT "A" hereto
which the parties represent and warrant is a true and complete list of
all such actions between them;
"CAUSES OF ACTION" - shall mean any and all causes of action, direct or
indirect, of any kind and nature whatsoever whether included in the
Litigation or not, which any party to this Release Agreement or any
other Releasee , has, had, or may have against any other party to this
Release Agreement or any other Releasee, all regarding any issue or
matter whatsoever pertaining directly or indirectly to NDS, including,
without limitation, the following issues and matters:
2.1.2.1. NDS and any and all of its affairs, actions and resolutions, including,
without limitation, resolutions or actions of its General
3
-3-
Meeting of Shareholders and/or Board of Directors and Committees or
sub-committees thereof and any other matter or issues pertaining to any
of the above;
2.2.2.2. The Shareholders Agreement signed between Xxxxxxxxx and Einav, Xxxxxxxx
and ECS on October 5, 1992 and any and all amendments thereto;
2.3.2.3. Any act, action, deed, omission or representation of each and any of
Releasees in any capacity whatsoever, including without limitation in
their capacity as NDS' shareholders, directors, officers, employees, or
professional or other advisors, regarding, or on behalf, or in the name
of NDS;
2.4 2.4. Any and all claims or causes of action which are the subject matter of
or are mentioned in any of the Litigation provided for in Exhibit "A"
hereto.
3.3. DISMISSAL OF LEGAL PROCEEDINGS
THE PARTIES HEREBY EXPRESSLY REPRESENT, AGREE AND WARRANT THAT:
3.1.3.1. Immediately upon the signature hereof, each of the parties, where
appropriate, jointly, directly or through their legal counsel, shall
request, that any and all Litigation shall be suspended until
Termination Date or until the Effective Date, whichever date comes
first.
3.2.3.2. Without derogating from the Release provided for in Section 4 below,
which shall come into effect on the Effective Date, non of the parties
to this Agreement shall initiate or commence and legal proceedings
against any other party to this Agreement prior to the Termination
Date.
3.3.3.3. All Litigation, lawsuits, actions and proceedings between them shall be
terminated with prejudice as soon as possible on or after the Effective
Date.
4. 4. RELEASE
4.1.4.1. Each and any of the parties to this Agreement or any other Releasee
under this Agreement, in any capacity whatsoever, including without
limitation in its capacity as a shareholder, director, officer or
employee of NDS, hereby irrevocably releases, discharges and holds each
and any of the other Releasees harmless (the "RELEASE") from any and
all Causes of Action (as herein defined) it ever had, now has or
hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world
to the
4
-4-
Effective Date, each other party to this Agreement or any other
Releasee.
4.2.4.2. For the avoidance of any doubt each and any party to this Agreement
hereby expressly declares, represents, agrees, warrants and covenants
that the Release provided for herein shall apply and shall be valid and
binding, notwithstanding any claim or argument that any fact, matter or
information whatsoever, pertaining to any matter or issue which are the
subject matter of this Release, were not in any party's possession or
knowledge. Each and any party to this Agreement acknowledges that all
other parties to the Agreement have been induced and have agreed to
enter the Agreement based, inter alia, upon the provisions of the
sub-Section 4.2 hereof, which constitutes a material covenant of this
Release and of the Settlement Agreement.
4.3.4.3. As part of this Release Agreement, NDS and Hollander hereby acknowledge
that the termination ("TERMINATION") of Xxxxxxxxx'x Employment on
December 1995 from employment with NDS or any of its affiliates was not
a "Termination for Cause" (as such a term is referred to in the
Employment Agreement entered into between Xxxxxxxxx and NDS, dated
January 1, 1992), and Xxxxxxxxx acknowledges that on the Effective Date
he shall not have any financial or other claims of any kind and nature
whatsoever against NDS or against any of the Releasees in connection
with the Termination and the Release provided for under this Agreement
applies to the Termination same as to all other matters pertaining or
relating to NDS, as provided for herein.
5.5. PROPOSED TRANSACTION
5.1.5.1. NDS will discuss and negotiate with BMC the terms and conditions of the
Proposed Transaction at NDS' full and exclusive discretion. Xxxxxxxxx'x
counsel may take part as observers at all discussions and negotiations
between NDS and BMC.
5.2.5.2. For the avoidance of all doubt, all parties hereby expressly represent,
declare and warrant that as of the date of execution of this Agreement
no arrangements, understandings or agreements have been made by and
between each and any of them and BMC granting any of them any executive
role or position in the corporation to be formed as a result of the
Proposed Transaction or any of its subsidiaries or in their respective
Board of Directors.
6.6. CERTAIN PAYMENTS
6.1.6.1. If any payment (the "Payment") to any director will be made by NDS on
the Effective Date and such payment will, in the opinion of NDS,
require the approval of NDS Shareholders, all in accordance with
5
-5-
the Draft Agreement, Xxxxxxxxx undertakes not to vote against the
proposed Payment in a meeting of shareholders called upon to approve
the Payment.
6.2.6.2. It is additionally agreed between the parties hereto that upon closing
of the Proposed Transaction contemplated under the Draft Agreement NDS
shall reimburse Xxxxxxxxx for legal expenses incurred in connection
with the Litigation and the Proposed Transaction in an amount of
$500,000 (five thousand US$) (and additionally VAT, payable against a
duly issued VAT invoice) which shall be paid directly by NDS to
Xxxxxxxxx'x Israeli counsel.
7.7. TERMINATION OF SHAREHOLDERS' AGREEMENT
On the Effective Date the Shareholders Agreement (the "SHAREHOLDERS
AGREEMENT") signed between Xxxxxxxxx and Einav, Xxxxxxxx and ECS on
October 5, 1992 and any and all amendments thereto shall be
automatically terminated without any additional act or action by any
party thereof. Notwithstanding anything else herein to the contrary
Section [ ] of this Shareholders Agreement (restrictions on sales of
securities) shall be suspended and have no effect upon the date of this
Agreement and until the Termination of the Agreement or the Effective
Date.
8.8. GENERAL TERMS AND CONDITIONS
8.1.8.1. AGREEMENT IN FAVOR OF A THIRD PARTIES
The provisions of this Release Agreement constitute an "Agreement In
Favor Of Third Parties" within the meaning of this term in Chapter D of
the Israeli Contract Law (General Part) 1973.
8.2.8.2. SEVERABILITY
If any provision of this Agreement shall be declared void, the validity
of any other provision and of the entire Agreement shall not be
affected thereby.
8.3.8.3. PROPER LAW AND JURISDICTION
This Agreement shall be exclusively governed by, and shall be construed
exclusively in accordance with the laws of the State of Israel and the
District Court of Tel Aviv Israel shall have the exclusive jurisdiction
over any dispute or controversy with respect to this Agreement,
including, without limitation, its existence, interpretation, execution
and implementation.
6
-6-
8.4.8.4. GOVERNING LANGUAGE
The Agreement is in English language only, which language shall control
in all respects. No translation, if any, of this Agreement into any
other language shall be of any force or effect in the interpretation of
this Agreement or in a determination of the intent of either party
hereto.
8.5.8.5. WAIVER
The failure at any time of either party to enforce any of the
provisions of the Agreement or any right with respect thereto or to
exercise any option herein provided, will in no way be construed to be
a waiver of such provisions, rights or options, or in any way to affect
the validity of this Agreement.
8.6.8.6. COMPLETE AGREEMENT
The provisions herein contained set forth the entire Agreement of the
parties with respect to the subject matter hereof, and supersede all
previous communications, representations or agreements, whether oral or
written, with respect to the subject matter hereof, and no addition to
or modification of this Agreement shall be binding upon another party
unless reduced to writing and signed by both parties hereto.
8.7.8.7. NOTICES
Any notice required or authorized to be given hereunder shall be served
by hand delivery or by certified letter return receipt requested or by
facsimile addressed to each of the parties hereto (as the case may be),
at the following addresses:
-----------------------
Any notice delivered by hand shall be deemed to have been served upon
delivery.
Any notice given by letter shall be deemed to have been served seven
(7) days after the same shall have been posted, not including the day
of posting, and any notice given by facsimile shall be deemed to have
been served on the day of sending the message.
Proof that such letter was properly addressed and put into the post,
and in the case of telex that the message was sent to the correct
facsimile number, shall be conclusive evidence of service. Notices
required by this Agreement shall be addressed to any other address as
may from time to time be specified by either party by written notice to
the other.
7
-7-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXXXX XXXXXXXXX
---------------------------
XXXXXX XXXXXXXXX
8
-8-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXX X. XXXXX /s/ XXX XXXXXX
-------------------------------- --------------------------------
NEW DIMENSION SOFTWARE LTD.
[LOGO]
9
-9-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXX X. XXXXX
--------------------------------
XXXX X. XXXXX
10
-10-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXXX XXXXXXXX
--------------------------
XXXXX XXXXXXXX
11
-11-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXX X. XXXXX /s/ XXXXX XXXXXXXX
------------------------------- -------------------------------
EINAV COMPUTER SYSTEMS LTD. EINAV COMPUTER SYSTEMS LTD.
12
-12-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXXXX XXXXXX
--------------------------------
XXXXXX XXXXXX
13
-13-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXXXXX XXXXXX
---------------------------------
XXXXXX XXXXXX
14
-14-
SIGNATURE PAGE OF THE SETTLEMENT AND RELEASE AGREEMENT
In witness thereof, the parties have executed this Settlement and Release
Agreement:
/s/ XXX XXXXXX
---------------------------------
XXX XXXXXX
15
EXHIBIT A
THE LITIGATIONS
Originating Motion File No. 2010/94 (including Motions No. 12884/95 and
13838/95 thereof) in the District Court of Tel Aviv
Civil Appeal Files No. 546/96 and 959/96 in the Supreme Court of Israel
Action in Civil File Xx. 000/00 xx xxx Xxxxxxxx Xxxxx xx Xxx Xxxx and (cross)
Counter claim therein
Action (case) No. 749047 filed on June 23, 1995 with the Superior Court of the
State of California, County of Orange
Action (case) No. 744032 filed on March 10, 1995 with the Superior Court of the
State of California, County of Orange
Action (case) No. 747103 filed on May 15, 1995 with the Superior Court of the
State of California, County of Orange
Master File SACV-94-279 AHS (RWRX) filed with U.S. District Court, Central
District of California on March 1994
Action in Originating Motion File Xx. 000/00 xx xxx Xxxxxxxx Xxxxx xx Xxx Xxxx
Origination Motion File Xx. 000/00 xx xxx Xxxxxxxx Xxxxx xx Xxx Xxxx
