1
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT, dated as of March 7, 1999 (this
"Agreement"), is made and entered into between BMC Software, Inc., a Delaware
corporation ("Purchaser") and Xxxxxx Xxxxxxxxx (the "Shareholder").
WITNESSETH
WHEREAS, concurrently herewith, Purchaser and New Dimension Software
Ltd., an Israeli corporation (the "Company"), are entering into a Share Purchase
and Tender Agreement (as such agreement may hereafter be amended from time to
time, the "Tender Agreement"); and
WHEREAS, as an inducement and a condition to entering into the Tender
Agreement, Purchaser has required that Shareholder agree, and Shareholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein and the
benefits to be received by the parties under the terms of the Tender Agreement,
the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
(a) Capitalized terms used and defined herein shall have the respective
meanings ascribed to them in the Tender Agreement. For purposes of this
Agreement:
(i) "Alternative Disposition" shall have the meaning ascribed
to such term in Article IV.
(ii) "Alternative Transaction Consideration" shall mean all
cash, securities, settlement or termination amounts, notes or other debt
instruments, and other consideration received or to be received, directly or
indirectly, by Shareholder and his affiliates in connection with or as a result
of an Alternative Disposition or any agreements or arrangements (including,
without limitation, any employment agreement, consulting agreement,
non-competition agreement, confidentiality agreement, settlement agreement or
release agreement) entered into, directly or indirectly, by Shareholder or his
affiliates (excluding officers and directors of Company) as a part of or in
connection with the Alternative Disposition or Company Transaction Proposal.
(iii) "Applicable Shares " means all Shares that are
Beneficially Owned by the Shareholder or that become Beneficially Owned by the
Shareholder prior to the Termination Date.
2
(iv) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean bearing "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include (i) securities
Beneficially Owned by all other Persons (who are affiliates of such Person
excluding officers and directors of Company) who together with such Person would
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange Act
and (ii) securities Beneficially Owned by that Person's spouse and children.
(v) "90% Condition" shall be such condition as set forth in
paragraph (1) of Exhibit A to the Tender Agreement.
(vi) "Offer Termination Date" shall mean the date the Offer
terminates or expires without the purchase of Shares thereunder; provided,
however, that if Purchaser initiates a new Offer under the terms of the Tender
Agreement on or before midnight, central time in the United States on the 10th
day following such date, the Offer Termination Date shall mean the date such
subsequent Offer terminates or expires without the purchase of Shares
thereunder; provided, however, that the Offer Termination Date will not be later
than the date of termination of the Tender Agreement.
(vii) "Per Share Amount" shall mean the price per Share of the
Offer as set forth in Section 1.1 of the Tender Agreement, as such price may be
increased in accordance with the Tender Agreement.
(viii) "Purchase Option" shall have the meaning ascribed to
such term in Section 3.1.
(ix) "Termination Date" shall mean the date ending on the
first to occur of:
(1) the Closing Date;
(2) the Offer Termination Date; or
(3) midnight, central time in the United States, on
the date all of the conditions to the Offer set forth in Exhibit A to the Tender
Agreement have been satisfied, except for the conditions set forth in paragraphs
(6)(d)(ii) or (6)(e), and Purchaser elects to terminate the Tender Agreement
without the purchase of Shares thereunder; provided, however, that,
notwithstanding subparagraphs (2) and (3) above, if after the date of this
Agreement (x) any person, entity or group (within the meaning of Section
13(d)(3) of the Exchange Act) (other than the Purchaser or any affiliate of
Purchaser) acquires more than 5% or more of the outstanding Shares and fails to
tender such Shares in the Offer and continues to hold such Shares and the Offer
is terminated as a result of the failure of the 90%Condition to be satisfied,
the Termination Date shall be the date 150 days after the Offer Termination
Date, or (y) there is a public
2
3
announcement of, or the disclosure to the management, board of directors,
shareholders or advisors of the Company of, a Company Transaction Proposal, and
the board of directors of the Company rejects such Company Transaction Proposal
and continues to recommend the Offer and the Offer is terminated as a result of
the failure of the 90%Condition to be satisfied, the Termination Date shall be
the date 120 days after the Offer Termination Date, or (z) there is a public
announcement of, or the disclosure to the management, board of directors,
shareholders or advisors of the Company of, a Company Transaction Proposal, and
the board of directors of the Company withdraws, withholds or modifies in a
manner adverse to Purchaser its approval of the Tender Agreement or the Offer
pursuant to Section 5.8 of the Tender Agreement, and the Offer is terminated as
a result of the failure of the 90%Condition to be satisfied, the Termination
Date shall be the date 150 days after the Offer Termination Date.
(x) "Underlying Shares" shall mean the Shares issuable to
Shareholder upon the exercise by Shareholder of Company Options, if any,
Beneficially Owned by him.
ARTICLE II
VOTING AND TENDER
MATTERS
2.1 Voting and Tender Matters.
(a) From and after the date of this Agreement and ending as of
the Termination Date, at any meeting of the holders of Shares however called, or
in any other circumstance upon which the vote, consent or other approval of
holders of Shares is sought, Shareholder shall vote (or cause to be voted) his
issued and outstanding Applicable Shares:
(i) against any action or agreement that would result
in a breach in any material respect of any covenant, representation or warranty
or any other material obligation or agreement of Company under the Tender
Agreement or this Agreement;
(ii) against the following actions (other than the
transactions contemplated by the Tender Agreement):
(A) any Company Transaction Proposal, and
(B) to the extent that such (1) are intended
to, or could reasonably be expected to, impede, interfere with, delay, postpone,
or materially adversely affect the Offer, or the transactions contemplated by
the Tender Agreement or this Agreement or (2) are intended to, or could
reasonably be expected to, implement or lead to any Company Transaction
Proposal: (x) any change in a majority of the persons who constitute the board
of directors of Company; (y) any change in the present capitalization of Company
or any amendment of Company's Memorandum and Articles of Association (other than
as expressly contemplated by the Tender Agreement); or (z) any other material
change in Company's corporate structure or business; and
3
4
(iii) for the proposals to:
(A) approve the right of the directors of
the Company to sell their Shares to the Purchaser pursuant to the Offer and the
transactions contemplated thereby,
(B) approve an amendment to the Company's
Articles of Association to provide that the holders of at least 60% of the
issued and outstanding Shares of the Company shall be entitled to appoint and
remove any and all members of the Board of Directors of the Company, by means of
a written notice signed by such holders of the Company, and
(C) approve any and all other matters
contemplated by the Tender Agreement and presented at the Special Meeting.
(b) Shareholder hereby grants to, and appoints, Purchaser and
any nominee thereof, its proxy and attorney-in-fact (with full power of
substitution), from and after the date of this Agreement and ending as of the
Termination Date, to vote his Applicable Shares, or to grant a consent or
approval in respect of his Applicable Shares on any and all matters relating to
the Tender Agreement, the Offer or any Company Transaction Proposal. Shareholder
intends such proxy to be irrevocable and coupled with an interest and will take
such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy previously
granted by Shareholder with respect to his Applicable Shares.
(c) From and after the date of this Agreement and ending as of
the Termination Date, Shareholder shall not take any action (including the
tender of any Shares) that could reasonably be expected to, implement or lead to
any Company Transaction Proposal.
2.2 Tender Agreement and Company Options.
(a) Shareholder hereby agrees that he shall (i) tender all of
his Applicable Shares into the Offer promptly, and in any event no later than
the third business day following the commencement of the Offer, and (ii) not
withdraw any Applicable Shares so tendered prior to the Offer Termination Date;
provided, however, that Shareholder may delay the tender of up to 75,000 of his
Shares until notified by Purchaser that such tender is required by Purchaser.
(b) In the event that (i) the 90 % Condition is not satisfied,
(ii) Purchaser notifies Shareholder that Purchaser is prepared to close the
Offer but for the fact that the 90 % Condition is not satisfied, and (iii) the
tender by Shareholder of the Underlying Shares, either alone or when aggregated
with other Company Options, would cause the 90 % Condition to be satisfied, then
Shareholder hereby agrees that, at any time prior to the Termination Date,
immediately upon the request of Purchaser, he shall exercise all Company Options
Beneficially Owned by him and immediately tender the Underlying Shares received
upon such exercise into the Offer (and not withdraw such Underlying Shares so
tendered). Purchaser shall advance to Shareholder the funds
4
5
necessary to pay the exercise price of such Options, and Shareholder shall repay
Purchaser the amount of such advance, without interest, immediately upon receipt
of the Per Share Amount by him for his Underlying Shares.
(c) Except as may be required by Section 2.2(b), Shareholder
hereby agrees that he shall not exercise any Company Options that he
Beneficially Owns.
ARTICLE III
PURCHASE OPTION
3.1 Grant of the Purchase Option. Shareholder hereby grants to
Purchaser an irrevocable option (the "Purchase Option") to purchase, on the
terms and subject to the conditions set forth herein, at the Per Share Amount
all his Applicable Shares.
3.2 Exercise of the Purchase Option.
(a) Subject to the conditions set forth in Section 3.3, the
Purchase Option may be exercised in whole at any time, and in part from time to
time, from and after the Offer Termination Date and ending as of the Termination
Date; provided, however, that in the event Purchaser exercises its Purchase
Option hereunder it shall exercise its Purchase Option in a proportionate amount
under that certain Shareholder Agreement with Einav Computer Systems Ltd., Xxxx
X. Xxxxx and Xxxxx Xxxxxxxx-Xxxxxxx of even date herewith entered into in
connection with the Tender Agreement.
(b) In the event Purchaser wishes to exercise the Purchase
Option, Purchaser will send a written notice to Shareholder specifying a place,
date (not less than two business days nor more than 10 calendar days after the
date such notice is given) and time for the closing of the purchase of such
Shares (the "Closing").
(c) The purchase price payable to Shareholder with respect to
any exercise of the Purchase Option will be the product of (i) the Per Share
Amount and (ii) the number of Applicable Shares to be purchased upon such
exercise.
3.3 Closing.
(a) At the Closing, Shareholder will deliver to Purchaser a
certificate or certificates representing the Shares being purchased, duly
endorsed for transfer or accompanied by appropriate stock powers duly executed
in blank, and Purchaser will pay the purchase price in immediately available
funds by wire transfer to an account designated by Shareholder. Transfer taxes,
if any, imposed as a result of the exercise of the Purchase Option and the
transfer of any Applicable Shares will be paid by Shareholder.
5
6
(b) The obligation of Purchaser and Shareholder to consummate
the purchase and sale of the Applicable Shares pursuant to this Article III will
be subject to the fulfillment of the following conditions:
(i) the expiration or termination of the waiting
period applicable to the consummation of such transactions under the HSR Act and
any other applicable antitrust laws; and
(ii) none of the parties hereto shall be subject to
any order or injunction of a court of competent jurisdiction which prohibits the
consummation of such transactions.
(c) The obligations of Shareholder pursuant to this Article
III shall also be subject to Purchaser not violating any of its material
obligations under the Tender Agreement.
Each of the parties will promptly make and will use all reasonable efforts to
cause each of their respective affiliates to make, all such filings and take all
such actions as may be reasonably required in order to permit the lawful
exercise of the Purchase Option, as promptly as possible. The date of any
Closing may be extended, if required, to the next business day following (1) the
date that any applicable waiting period(s) under the HSR Act and any other
applicable antitrust laws shall have expired or been earlier terminated, (2) the
date that all other necessary governmental approvals for the sale of the Shares
for which the Purchase Option shall have been exercised shall have been
obtained, and (3) the satisfaction of any other condition to the Closing under
the Tender Agreement.
ARTICLE IV
CAPTURE
4.1 Capture. In the event that the Applicable Shares of
Shareholder are sold, transferred, exchanged, canceled or disposed of in
connection with or as a result of any Company Transaction Proposal that is in
existence on, or that has been otherwise made prior to the Termination Date (an
"Alternative Disposition") then, within five business days after the closing of
such Alternative Disposition, Shareholder shall tender and pay to, or shall
cause to be tendered and paid to, Purchaser (or its designee), in immediately
available funds, the Profit realized from such Alternative Disposition, less any
withholdings.
4.2 Profit. As used in this Article IV, "Profit" shall mean an
amount equal to the excess, if any, of (a) the Alternative Transaction
Consideration over (b) the Per Share Amount multiplied by Shareholder's
Applicable Shares sold, transferred, exchanged, canceled or disposed of in such
Alternative Disposition. For purposes of determining Profit, (i) all non-cash
items shall be valued based upon the fair market value thereof as determined by
an independent expert selected by Purchaser and who is reasonably acceptable to
Shareholder, (ii) all deferred payments or consideration shall be discounted to
reflect a market rate of net present value thereof as determined by the
above-referenced independent expert, and (iii) all contingent payments will be
assumed to have been paid. In the event any contingent payments included in the
determination of Profit ultimately are not paid pursuant to an Alternative
Disposition, then Purchaser shall promptly
6
7
reimburse Shareholder for any amounts paid to Purchaser hereunder in respect of
such uncollected contingent payments promptly after receipt of written notice of
such non-payment.
ARTICLE V
ESCROW
5.1 Escrow Agreement. As further set forth in the Escrow Agreement
attached hereto as Exhibit 5.1, Shareholder and Purchaser agree that the
Applicable Shares (less up to 75,000 Applicable Shares which need not be placed
with the Escrow Agent) shall be placed with Meitar, Liquornik, Geva & Co. as
escrow agent within five business days of the date hereof and ending on the
Termination Date, to be disbursed as set forth below.
5.2 Release and Delivery. The Applicable Shares shall be released and
delivered during the term hereof at any time or from time to time, (i) to
Purchaser in connection with the purchase of such Shares pursuant to this
Agreement or the Offer and (ii) unless otherwise distributed to Purchaser, to
Shareholder on the Termination Date. All Applicable Shares tendered in the Offer
and withdrawn or not purchased in the Offer prior to the Termination Date shall
be returned to the Escrow Agent.
ARTICLE VII
RELEASE
(a) AS OF THE CLOSING DATE SHAREHOLDER DOES HEREBY FOR HIMSELF
OR HIS HEIRS, EXECUTORS, ADMINISTRATORS AND LEGAL REPRESENTATIVES REMISE,
RELEASE, ACQUIT AND FOREVER DISCHARGE COMPANY AND EACH OF ITS SUBSIDIARIES OF
AND FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, RESPONSIBILITIES, DISPUTES,
CAUSES OF ACTION AND OBLIGATIONS OF EVERY NATURE WHATSOEVER, LIQUIDATED OR
UNLIQUIDATED, KNOWN OR UNKNOWN, MATURED OR UNMATURED, FIXED OR CONTINGENT, WHICH
SUCH SHAREHOLDER NOW HAS, OWNS OR HOLDS OR HAS AT ANY TIME PREVIOUSLY HAD, OWNED
OR HELD AGAINST COMPANY OR ITS SUBSIDIARIES INCLUDING WITHOUT LIMITATION ALL
LIABILITIES CREATED AS A RESULT OF THE NEGLIGENCE, GROSS NEGLIGENCE AND WILLFUL
ACTS OF COMPANY OR ITS SUBSIDIARIES AND ITS EMPLOYEES AND AGENTS, AND ALL
LIABILITIES RELATING TO COMPENSATION IN ANY FORM OR MANNER EXISTING AS OF THE
DATE HEREOF OR RELATING TO ANY MATTER THAT OCCURRED ON OR PRIOR TO THE CLOSING
DATE; PROVIDED, HOWEVER, THAT ANY CLAIMS, LIABILITIES, DEBTS OR CAUSES OF ACTION
THAT MAY ARISE IN CONNECTION WITH THE FAILURE OF ANY OF THE PARTIES HERETO TO
PERFORM ANY OF THEIR OBLIGATIONS HEREUNDER OR UNDER ANY OTHER AGREEMENT RELATING
TO THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATIONS, SECTION
5.9. OF THE TENDER AGREEMENT, OR FROM ANY BREACHES BY ANY OF THEM OF ANY
7
8
REPRESENTATIONS OR WARRANTIES HEREIN OR IN CONNECTION WITH ANY OF
SUCH OTHER AGREEMENTS SHALL NOT BE RELEASED OR DISCHARGED
PURSUANT TO THIS AGREEMENT.
(b) SHAREHOLDER REPRESENTS AND WARRANTS THAT HE HAS NOT
PREVIOUSLY ASSIGNED OR TRANSFERRED, OR PURPORTED TO ASSIGN OR TRANSFER, TO ANY
PERSON OR ENTITY WHATSOEVER ALL OR ANY PART OF THE CLAIMS, DEMANDS, LIABILITIES,
RESPONSIBILITIES, DISPUTES, CAUSES OF ACTION OR OBLIGATIONS RELEASED HEREIN.
SHAREHOLDER COVENANTS AND AGREES THAT HE WILL NOT ASSIGN OR TRANSFER TO ANY
PERSON OR ENTITY WHATSOEVER ALL OR ANY PART OF THE CLAIMS, DEMANDS, LIABILITIES,
RESPONSIBILITIES, DISPUTES, CAUSES OF ACTION OR OBLIGATIONS TO BE RELEASED
HEREIN. SHAREHOLDER REPRESENTS AND WARRANTS THAT HE HAS READ AND UNDERSTANDS ALL
OF THE PROVISIONS OF THIS ARTICLE VI AND THAT HE HAS BEEN REPRESENTED BY LEGAL
COUNSEL OF HIS OWN CHOOSING IN CONNECTION WITH THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT.
ARTICLE VII
COVENANTS, REPRESENTATIONS AND WARRANTIES
7.1 Shareholder hereby represents, warrants and covenants to Purchaser
as follows:
(a) Ownership. Shareholder is either (i) the record and
Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder of,
the number of issued and outstanding Shares set forth on Part I of Schedule A
hereto and the Company Options set forth on Part II of Schedule A hereto. As of
the date of this Agreement, the Shares set forth on Part I of Schedule A hereto
constitute all of the issued and outstanding Shares owned of record or
Beneficially Owned by Shareholder. Except as otherwise set forth in Part I to
Schedule A hereto and with respect to encumbrances on up to 75,000 Shares,
Shareholder has sole power of disposition, sole power of conversion, and sole
power to agree to all of the matters set forth in this Agreement, in each case
with respect to all of the Shares set forth on Part I of Schedule A hereto, with
no material limitations, qualifications or restrictions on such rights, subject
to applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Shareholder has the legal
capacity, power and authority to enter into and perform all of Shareholder's
obligations under this Agreement. This Agreement has been duly and validly
authorized by all necessary action, executed and delivered by Shareholder and
constitutes a valid and binding agreement of Shareholder, enforceable against
Shareholder in accordance with its terms. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which Shareholder is
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by Shareholder of the transactions contemplated
hereby. If Shareholder is married and Shareholder's Shares constitute
8
9
community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, Shareholder's
spouse, enforceable against such person in accordance with its terms.
(c) No Conflicts. Except for the filing of an amendment to
Shareholder's Schedule 13D or 13G, if any, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Shareholder and
the consummation by Shareholder of the transactions contemplated hereby, except
where the failure to obtain such consent, permit, authorization, approval or
filing would not interfere with Shareholder's ability to perform his obligations
hereunder, and none of the execution and delivery of this Agreement by
Shareholder, the consummation by Shareholder of the transactions contemplated
hereby or compliance by Shareholder with any of the provisions hereof shall (i)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Shareholder is a party or by which
Shareholder or any of his properties or assets may be bound, or (ii) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to Shareholder or any of his properties or assets, in each such case
except to the extent that any conflict, breach, default or violation would not
interfere with the ability of Shareholder to perform his obligations hereunder.
All arrangements, understandings, agreements and other instruments relating to
the Shareholder's ability to dispose of, tender, vote or grant a proxy with
respect to his Applicable Shares or enter into this Agreement have been validly
terminated, except that the Purchaser acknowledges that Shareholder has
encumbered up to 75,000 Shares, which shall be released from such encumbrance on
demand by Purchaser.
(d) No Encumbrances. Except as required herein, at all times
during the term hereof, all of Shareholder's Shares or Company Options as set
forth on Part I and II, respectively, of Schedule A hereto will be held by
Shareholder, an affiliate of Shareholder, or by a nominee or custodian for the
benefit of Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any liens, claims, understandings or
arrangements that do not limit or impair Shareholder's ability to perform his
obligations under this Agreement; provided, however, that Shareholder may
encumber up to 75,000 Shares during the term hereof and Shareholder agrees to
cause such Shares to be released from any such encumbrance on demand by
Purchaser.
(e) No Solicitation. Shareholder shall comply, and shall cause
each of his affiliates who Beneficially Own any of Shareholder's Applicable
Shares to comply, with the terms of Section 5.8 of the Tender Agreement.
(f) Restriction on Transfer, Proxies and Non-Interference.
Except as expressly contemplated hereby, from and after the date of this
Agreement and ending as of the Termination Date, Shareholder shall not, and
shall cause each of his affiliates who Beneficially Own any of
9
10
Shareholder's Applicable Shares or Company Options not to, directly or
indirectly, without the consent of Purchaser: (i) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of his Applicable Shares or
Company Options, or any interest therein, (ii) grant any proxies or powers of
attorney, deposit any or all of his Applicable Shares or Company Options into a
voting trust or enter into a voting agreement with respect to his Applicable
Shares or Company Options, (iii) enter into any agreement or arrangement
providing for any of the actions described in clause (i) or (ii) above, or (iv)
take any action that could reasonably be expected to have the effect of
preventing or disabling Shareholder from performing his obligations under this
Agreement. From and after the date of this Agreement and ending as of the
Termination Date, Shareholder shall not enter into any agreement or
understanding with any Person or entity the effect of which would be
inconsistent with or violate the provisions and agreements contained in this
Section 7.1
(g) Further Assurances. From time to time, at Purchaser's
request and without further consideration, Shareholder shall execute and deliver
such additional documents as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
7.2 Purchaser hereby represents, warrants and covenants to Shareholder
as follows:
(a) Organization, Standing and Corporate Power. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, with adequate corporate power and authority to own its
properties and carry on its business as presently conducted. Purchaser has the
corporate power and authority to enter into and perform all of its obligations
under this Agreement and to consummate the transactions contemplated hereby.
(b) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby, except where
the failure to obtain such consent, permit, authorization, approval or filing
would not interfere with its ability to perform its obligations hereunder, and
none of the execution and delivery of this Agreement by Purchaser, the
consummation by Purchaser of the transactions contemplated hereby or compliance
by Purchaser with any of the provisions hereof shall (i) conflict with or result
in any breach of any applicable organizational documents applicable to
Purchaser, (ii) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Purchaser is a party or
by which Purchaser or any of Purchaser's properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment, order, statute,
rule or regulation applicable to Purchaser or any of Purchaser's properties or
assets, in each
10
11
such case except to the extent that any conflict, breach, default or violation
would not interfere with the ability of Purchaser to perform its obligations
hereunder.
(c) Execution, Delivery and Performance by Purchaser. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of Purchaser, and Purchaser has taken all other actions required by
law, its certificate of incorporation and its by-laws to consummate the
transactions contemplated by this Agreement. This Agreement constitutes the
valid and binding obligations of Purchaser and is enforceable in accordance with
its terms, except as enforceability may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally.
7.3 Purchaser will perform its obligations under the Tender Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Stop Transfer. From and after the date of this Agreement and ending
as of the Termination Date, Shareholder will not request that Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of Shareholder's Applicable Shares or Company Options,
except as otherwise contemplated hereby.
8.2 Recapitalization. In the event of a stock dividend or distribution,
or any change in the Shares by reason of any split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall include,
without limitation, all such stock dividends and distributions and any
securities into which or for which any or all of the Applicable Shares may be
changed or exchanged as may be appropriate to reflect such event.
8.3 Shareholder Capacity. Except as set forth in Section 7.3,
Shareholder does not make any agreement or understanding herein in his capacity
as a director or officer of Company and nothing herein shall limit or affect any
action taken by Shareholder in such capacity. Nothing herein shall in any way
restrict or limit Shareholder from taking any action in his capacity as a
director or officer of Company or otherwise fulfilling his fiduciary obligations
as a director and officer of Company.
8.4 Tender Agreement and Company Options. Shareholder hereby consents
and agrees to the treatment of Company Options Beneficially Owned by Shareholder
or his affiliates as set forth in the Tender Agreement.
8.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
11
12
8.6 Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
8.7 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
(a) if to Purchaser, to:
BMC Software, Inc.
0000 XxxxXxxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attn: X. Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
(b) if to Shareholder, to:
x/x Xxxxxx, Xxxxxxxxx, Xxxx & Xx.
00 Xxxx Xxxxxx Silver Road
Ramat-Gan
Israel 52506
Attn: Xxx Xxxx
Telecopy: 972-3-610-3100
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
8.8 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity,
12
13
illegality or unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
8.9 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by a Shareholder of any covenants or agreements
contained in this Agreement will cause the Purchaser to sustain damages for
which they would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the Purchaser shall be entitled to the remedy of specific performance, without
the requirement of posting any bond, of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
8.10 Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
8.11 No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
8.12 No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto; provided that, in the event of Shareholder's death,
the benefits and obligations of Shareholder hereunder shall inure to his
successors and heirs.
8.13 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
8.14 Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
8.15 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement. This Agreement shall not be
effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
13
14
8.16 Trust Funds. In the event that any party hereto should receive any
funds that are to be paid to another party pursuant to the terms of this
Agreement, then the receiving party shall hold such funds in trust for the
benefit of the party entitled to receive such funds and shall promptly pay such
funds to the party entitled to receive such funds in accordance with this
Agreement.
14
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on this 7th day of March, 1999.
PURCHASER
By: /s/ X. XXXXXXXX XXXXX
-----------------------------------------
Name: X. Xxxxxxxx Xxxxx
Title: Senior Vice President
SHAREHOLDER
/s/ XXXXXX XXXXXXXXX
--------------------------------------------
Xxxxxx Xxxxxxxxx
15
16
ACKNOWLEDGMENT AND CONSENT OF SPOUSE
XXXX XXXXXXXXX, the spouse of Shareholder, hereby joins in the
execution of this Agreement for the purpose of acknowledging that any ownership
interest she may have in the Shares and Company Options Beneficially Owned by
Shareholder is subject to the terms of this Agreement to the same extent as if
she were a "Shareholder" hereunder, and hereby consents to the foregoing.
/s/ XXXX XXXXXXXXX
16
17
SCHEDULE A
PART I
Shares Beneficially Owned of Record 3,488,250 (1)
-------------
Shares Beneficially Owned Not of Record 253,000 (2)
-------------
PART II
Company Options Beneficially Owned 0
-------------
(1) 22,000 of those shares may be pledged.
(2) 53,000 of those shares are pledged.
17
