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EXHIBIT B
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of May 22, 2000, by
and between ______________________ (the "Shareholder"), and BMC Software, Inc.,
a Delaware corporation (the "Grantee").
RECITALS:
The Grantee, OptiSystems Solutions, Ltd., an Israeli corporation (the
"Company") and Xxxxxx Acquisitions Ltd., an Israeli corporation and a wholly
owned subsidiary of Grantee ("Merger Sub"), propose to enter into an Agreement
of Merger ("Agreement of Merger") providing, among other things, for the merger
of Merger Sub with and into the Company (the "Merger"), with the Company as the
surviving corporation.
As an inducement to the Grantee's willingness to enter into the
Agreement of Merger, the Grantee has requested that the Shareholder agree, and
the Shareholder has agreed, to grant the Grantee the Option (as defined below).
As an inducement to the Grantee's willingness to enter into the
Agreement of Merger, the Shareholder has also agreed to enter into a Shareholder
Undertaking in favor of Grantee dated as of the date hereof (the "Undertaking").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, in the
Agreement of Merger and the Undertaking, the Shareholder and the Grantee agree
as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein are
defined in the Agreement of Merger and are used herein with the same meanings as
ascribed to them therein; provided, however, that, as used in this Agreement,
"Person" shall have the meaning specified in Sections 3(a)(9) and 13(d)(3) of
the Exchange Act.
2. Grant of Option. Subject to the terms and conditions set forth
herein, the Shareholder hereby grants to the Grantee an irrevocable option (the
"Option") to purchase from the Shareholder at a per share exercise price of
$10.00 (the "Exercise Price"), a number of ordinary shares, par value NIS 0.05
per share, of the Company (the "Company Ordinary Shares"), equal to 10% of the
Company Ordinary Shares outstanding as of the date hereof (as adjusted as set
forth herein) (the "Option Shares").
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3. Term. The Option shall become exercisable following the occurrence
of an Exercise Event (as hereinafter defined) and shall remain in full force and
effect until the earliest to occur of (i) the Effective Time and (ii) the first
anniversary of the valid termination of the Agreement of Merger (the "Option
Term"). Notwithstanding the foregoing, in the event that the Agreement of Merger
is validly terminated prior to the occurrence of an Exercise Event and such
termination does not constitute an Exercise Event, this Option shall terminate.
4. Exercise of Option.
4.1 The Grantee may exercise the Option, in whole or in part,
at any time and from time to time during the Option Term following the
occurrence of an Exercise Event. Notwithstanding the expiration of the
Option Term, the Grantee shall be entitled to purchase those Option
Shares with respect to which it has exercised the Option in accordance
with the terms hereof prior to the expiration of the Option Term.
4.2 As used herein, an "Exercise Event" shall mean any of the
following events:
4.2.1 any Person (other than the Grantee or any
affiliate of the Grantee) shall have commenced (as such term
is defined in Rule 14d-2 under the Exchange Act) a tender
offer or exchange offer to purchase any Company Ordinary
Shares such that, upon consummation of such offer, such Person
would own or control 20% or more of the then outstanding
Company Ordinary Shares;
4.2.2 the receipt by the Company or the publication
of any Acquisition Proposal (as defined in the Undertaking);
4.2.3 any Person (other than the Grantee, the Company
or any of their subsidiaries) shall have, subsequent to the
date of this Agreement, acquired beneficial ownership (as such
term is defined in Rule 13d-3 under the Exchange Act) or the
right to acquire beneficial ownership of, or any "Group" (as
such term is defined in Rule 13d-3 under the Exchange Act)
shall have been formed that beneficially owns, or has the
right to acquire beneficial ownership of, 20% or more of the
then outstanding Company Ordinary Shares; or
4.2.4 any event giving rise to a right by Grantee of
payment of the Termination Fee under the Agreement of Merger.
4.3 If the Grantee wishes to exercise the Option, it shall
send a written notice (the date of which being herein referred to as
the "Notice Date") to the Shareholder specifying (i) the total number
of Option Shares it intends to purchase pursuant to such exercise and
(ii) a place and a date not earlier than three (3) business days nor
later
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than fifteen (15) business days from the Notice Date for the closing of
such purchase (the "Closing Date"); provided, however, that, if the
closing of the purchase and sale pursuant to the Option (the "Closing")
cannot be consummated by reason of any applicable law, regulation or
order, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which such restriction on
consummation has expired or been terminated; and, provided, further,
that, without limiting the foregoing, if prior notification to, or
authorization of, any governmental authority is required in connection
with such purchase, the Grantee and, if applicable, the Shareholder
shall promptly file the required notice or application for
authorization and shall expeditiously process the same (and the
Shareholder shall cooperate with the Grantee in the filing of any such
notice or application and the obtaining of any such authorization), and
the period of time that otherwise would run pursuant to this sentence
shall run instead from the date on which, as the case may be, (i) any
required notification period has expired or been terminated or (ii)
such authorization has been obtained and, in either event, any
requisite waiting period has passed.
4.4 Notwithstanding Section 4.3, in no event shall any Closing
Date be more than six (6) months after the related Notice Date, and, if
the Closing Date shall not have occurred within six months after the
related Notice Date due to the failure to obtain any required
authorization of a governmental authority, the exercise of the Option
effected on the Notice Date shall be deemed to have expired.
5. Payment and Delivery of Certificates.
5.1 On each Closing Date, the Grantee shall pay to the
Shareholder in immediately available funds by wire transfer to a bank
account designated by the Shareholder an amount equal to the Exercise
Price multiplied by the Option Shares to be purchased on such Closing
Date.
5.2 At each Closing, simultaneously with the delivery of
immediately available funds as provided in Section 5.1, the Shareholder
shall deliver to the Grantee a certificate or certificates representing
the Option Shares to be purchased at such Closing, which Option Shares
shall be duly authorized, validly issued, fully paid and nonassessable
and free and clear of all Encumbrances and a duly executed share
transfer deed transferring the Option Shares to the Grantee, and
Grantee shall deliver to the Shareholder its written agreement that the
Grantee will not offer to sell or otherwise dispose of such Option
Shares in violation of applicable law.
6. Adjustment Upon Changes in Capitalization, Etc. In the event of any
change in the Company Ordinary Shares by reason of a stock dividend, split-up,
combination, recapitalization, amalgamation, conversion, liquidation, exchange
of shares or similar transaction, the type and number of shares or securities
subject to the Option, and the Exercise
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Price therefor, shall be adjusted appropriately so that the Grantee shall
receive upon exercise of the Option the same class and number of outstanding
shares or other securities or property that Grantee would have received in
respect of the Company Ordinary Shares if the Option had been exercised
immediately prior to such event, or the record date therefor, as applicable. In
the event that the Shareholder shall or become entitled to receive any
securities or property from the Company or any of its subsidiaries by reason of
being a record holder of the Option Shares (other than pursuant to an event
described in the first sentence of Section 6), then upon exercise of this
Option, Grantee shall be entitled to receive from the Shareholder, in addition
to the Option Shares subject to such exercise, any such securities or property
with respect to such Option Shares. If any additional Company Ordinary Shares
are issued after the date of this Agreement (other than pursuant to an event
described in the first sentence of this Section 6), the number of Company
Ordinary Shares then remaining subject to the Option shall be adjusted so that,
after such issuance of additional shares, such number of shares then remaining
subject to the Option, together with shares theretofore issued pursuant to the
Option, equals 10% of the number of Company Ordinary Shares then issued and
outstanding.
7. Representations And Warranties Of Shareholder. Shareholder hereby
represents and warrants to Grantee as follows:
7.1 Authorization, etc. Shareholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Agreement and to perform his obligations hereunder. This
Agreement has been duly executed and delivered by Shareholder and
constitutes a legal, valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms, subject
to (i) laws of general application relating to bankruptcy, insolvency
and the relief of debts, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
7.2 No Conflicts or Consents.
7.2.1 The execution and delivery of this Agreement by
Shareholder does not, and the performance of this Agreement by
Shareholder will not: (A) conflict with or violate any law
applicable to Shareholder or by which he or any of his
properties is or may be bound or affected; or (B) result in or
constitute (with or without notice or lapse of time) any
breach of or default under, or give to any other Person (with
or without notice or lapse of time) any right of termination,
amendment, acceleration or cancellation of, or result (with or
without notice or lapse of time) in the creation of any
encumbrance on any of the Option Shares pursuant to, any
agreement to which Shareholder is a party or by which
Shareholder or any of his affiliates or properties is or may
be bound or affected.
7.2.2 The execution and delivery of this Agreement by
Shareholder does not, and the performance of this Agreement by
Shareholder will
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not, require any consent of any Person.
8. Miscellaneous.
8.1 Expenses. Except as otherwise provided in the Agreement of
Merger, the Undertaking or in this Agreement, all costs and expenses
incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such costs and expenses.
8.2 Waiver and Amendment. Any provision of this Agreement may
be waived at any time by the party that is entitled to the benefits of
such provision. No failure on the part of a party to this Agreement to
exercise any power, right, privilege or remedy under this Agreement,
and no delay on the part of any party to this Agreement in exercising
any power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right,
privilege or remedy. No party shall be deemed to have waived any claim
available to such party arising out of this Agreement, or any power,
right, privilege or remedy of such party under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered
on behalf of such party, and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given.
This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed
by the parties hereto.
8.3 Entire Agreement; No Third Party Beneficiary. Except as
otherwise set forth in the Agreement of Merger, the Undertaking, this
Agreement (including the Agreement of Merger, the Undertaking and the
other documents and instruments referred to herein and therein) (i)
constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties with
respect to the subject matter hereof and (ii) is not intended to confer
upon any Person other than the parties hereto any rights or remedies
hereunder.
8.4 Governing Law; Venue.
8.4.1 This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern
under applicable principles of conflicts of law; provided,
however, that any matter involving the internal corporate
affairs of the Company or any party hereto shall be governed
by the provisions of the jurisdiction of its incorporation.
8.4.2 In any action between Shareholder and Grantee
arising out of or
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relating to any provision of this Agreement (A) Shareholder
irrevocably and unconditionally consents and submits to the
jurisdiction and venue of the state and federal courts located
in the State of New York; (B) if any such action is commenced
in a state court, then, subject to applicable law, Shareholder
shall not object to the removal of such action to any federal
court located in the State of New York; (C) Shareholder
irrevocably waives the right to trial by jury; and (D)
Shareholder irrevocably consents to service of process by
first class certified mail, return receipt requested, postage
prepaid, to the address at which such party is to receive
notice in accordance with Section 8.5.
8.4.3 SHAREHOLDER IRREVOCABLY WAIVES THE RIGHT TO A
JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO
THIS UNDERTAKING OR THE ENFORCEMENT OF ANY PROVISION OF THIS
UNDERTAKING.
8.5 Notices. Any notice or other communication required or
permitted to be delivered to Grantee or Shareholder under this
Agreement shall be in writing and shall be deemed properly delivered,
given and received when delivered (by hand, by registered mail, by
courier or express delivery service or by facsimile) to the address or
facsimile telephone number set forth beneath the respective names of
Grantee or Shareholder below (or to such other address or facsimile
telephone number as Grantee or Shareholder shall have specified in a
written notice given to the other):
If to the Shareholder to:
Name:
Address:
Facsimile:
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with a copy to:
Name:
Address:
Attention:
Facsimile:
If to Grantee to:
BMC Software, Inc.
0000 XxxxXxxx Xxxx.
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
Name:
Address:
Attention:
Facsimile:
8.6 Counterparts. This Agreement and any amendments hereto may
be executed in two counterparts, each of which shall be considered one
and the same agreement and shall become effective when both
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that both parties need not execute
the same counterpart.
8.7 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder or under the Option shall be
assigned by either of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other party,
except that the Grantee may assign this Agreement to a wholly owned
subsidiary of the Grantee; provided, however, that no such assignment
shall have the effect of releasing the Grantee from its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
8.8 Further Assurances. In the event of any exercise of the
Option by the Grantee, the Shareholder and the Grantee shall execute
and deliver all other documents and instruments and take all other
action that may be reasonably necessary in order to consummate the
transactions provided for by such exercise.
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8.9 Specific Performance. The parties hereto hereby
acknowledge and agree that the failure of any party to this Agreement
to perform its agreements and covenants hereunder will cause
irreparable injury to the other party to this Agreement for which
damages, even if available, will not be an adequate remedy.
Accordingly, each of the parties hereto hereby consents to the granting
of equitable relief (including specific performance and injunctive
relief) by any court of competent jurisdiction to enforce any party's
obligations hereunder. The parties further agree to waive any
requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have
for any failure to perform this Agreement.
8.10 Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a
court of competent jurisdiction to be illegal, invalid or
unenforceable, the remainder of this Agreement will continue in full
force and effect and the application of such provision to other Persons
or circumstances will be interpreted so as reasonably to effect the
intent of Shareholder and Grantee. Shareholder further agrees to
replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the fullest
extent possible, the economic, business and other purposes of such void
or unenforceable provision.
8.11 Survival of Representations, Warranties and Agreements.
All representations, warranties, covenants and agreements made by
Shareholder in this Agreement shall survive (i) the consummation of the
Merger, (ii) any termination of the Merger Agreement, and (iii) the
Expiration Date.
8.12 Indemnification. Shareholder shall hold harmless and
indemnify Grantee and Grantee's officers, directors, employees, agents,
representatives and affiliates (the "Grantee Indemnified Parties") from
and against, and shall compensate and reimburse Grantee and Grantee's
affiliates for, any loss, damage, claim, liability, fee (including
attorneys' fees), demand, cost or expense (regardless of whether or not
such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered
or incurred by the Grantee Indemnified Parties, or to which Grantee or
any the Grantee Indemnified Parties otherwise become subject, and that
arises directly or indirectly from, or relates directly or indirectly
to, (i) any inaccuracy in or breach of any representation or warranty
contained in this Agreement, or (ii) any failure on the part of
Shareholder to observe, perform or abide by, or any other breach of,
any restriction, covenant, obligation or other provision contained in
this Agreement. THE PROVISIONS OF THIS SECTION 8.13 SHALL APPLY
NOTWITHSTANDING THE SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT
LIABILITY OR OTHER FAULT OF THE GRANTEE INDEMNIFIED PARTIES.
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8.13 Non-Exclusivity. The rights and remedies of Grantee under
this Agreement are not exclusive of or limited by any other rights or
remedies that it may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative).
Without limiting the generality of the foregoing, the rights and
remedies of Grantee under this Agreement, and the obligations and
liabilities of Shareholder under this Agreement, are in addition to
their respective rights, remedies, obligations and liabilities under
common law requirements and under all applicable statutes, rules and
regulations.
8.14 Construction.
8.14.1 For purposes of this Agreement, whenever the
context requires: the singular number shall include the
plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall
include masculine and feminine genders.
8.14.2 Shareholder agrees that any rule of
construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in the
construction or interpretation of this Agreement.
8.14.3 As used in this Agreement, the words "include"
and "including," and variations thereof, shall not be deemed
to be terms of limitation, but rather shall be deemed to be
followed by the words "without limitation."
8.14.4 Except as otherwise indicated, all references
in this Agreement to "Sections" are intended to refer to
Sections of this Agreement.
8.14.5 The bold-faced or italicized headings
contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and
shall not be referred to in connection with the construction
or interpretation of this Agreement.
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IN WITNESS WHEREOF, the Shareholder and the Grantee have caused this
Stock Option Agreement to be signed by their respective officers thereunto duly
authorized, all as of the day and year first written above.
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Name:
BMC SOFTWARE, INC.
By:
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Name:
Title:
STOCK OPTION AGREEMENT
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