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RELEASE
This Release, dated as of March 7, 1999, is made and entered into by
and among New Dimension Software Ltd., an Israeli corporation (the "Company")
and , a director of the Company ("Director").
WITNESSETH
WHEREAS, Company and BMC Software, Inc., a Delaware corporation
("Purchaser"), desire to enter into a Share Purchase and Tender Agreement (the
"Tender Agreement"), which will provide for the acquisition by Purchaser
ordinary shares of the Company through a tender offer and compulsory acquisition
(provided for under the Companies' Ordinance in the State of Israel);
WHEREAS, the ability of the Company to enter into the Tender Agreement
is conditioned upon the Company obtaining general releases from certain
directors of the Company, including Director, respecting any claims such
directors may have against the Company;
WHEREAS, two other directors of the Company, and
(the "Other Directors"), have entered into identical releases on even
date herewith (the "Other Releases");
WHEREAS, the Director has asserted that he has a claim against the
Company based on an alleged promise by the Company to grant the Director certain
stock options and/or other compensation, an alleged promise which the Company
vigorously denies and repudiates;
NOW, THEREFORE, in consideration of the premises set forth above, as
well as the mutual promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
RELEASE
1.1 AS OF THE DATE OF THE PAYMENT DESCRIBED IN ARTICLE II HEREOF OR THE
DATE UPON WHICH THE TENDER OFFER DESCRIBED IN THE TENDER AGREEMENT IS
CONSUMMATED, WHICHEVER IS LATER (THE "EFFECTIVE TIME"), THE DIRECTOR DOES HEREBY
FOR HIMSELF OR HIS HEIRS, EXECUTORS, ADMINISTRATORS AND LEGAL REPRESENTATIVES
REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE THE 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 DIRECTOR NOW HAS, OWNS OR HOLDS OR HAS AT ANY
TIME PREVIOUSLY HAD, OWNED OR
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HELD AGAINST THE COMPANY OR ITS SUBSIDIARIES INCLUDING WITHOUT LIMITATION ALL
LIABILITIES CREATED AS A RESULT OF THE NEGLIGENCE, GROSS NEGLIGENCE AND WILLFUL
ACTS OF THE COMPANY OR ITS SUBSIDIARIES AND ITS EMPLOYEES AND AGENTS, AND ALL
LIABILITIES RELATING TO COMPENSATION IN ANY FORM OR MANNER EXISTING AS OF THE
EFFECTIVE TIME OR RELATING TO ANY MATTER THAT OCCURRED ON OR PRIOR TO THE
EFFECTIVE TIME.
1.2 THE DIRECTOR 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. THE
DIRECTOR 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. THE DIRECTOR REPRESENTS AND WARRANTS THAT HE HAS READ AND UNDERSTANDS
ALL OF THE PROVISIONS OF THIS ARTICLE I 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 II
PAYMENT OF CONSIDERATION
The Company hereby agrees to pay Xxxxxxxx Xxxxxx, Esquire, on behalf of
the Director and the Other Directors in consideration of the execution of this
Release and the Other Releases and as additional remuneration for services to
the Company by the Director and the Other Directors, respectively, an aggregate
payment of $7,500,000 in cash (plus value added tax as prescribed by law against
a duly issued value added tax invoice), less any amounts required to be withheld
pursuant to applicable tax regulations, immediately prior to the Closing Date as
set forth in the Tender Agreement and the release set forth herein and such
payment shall be conditioned on the closing under the Tender Agreement. The
payment made pursuant to this Article II shall be in full settlement of any
claims, demands, liabilities, responsibilities, disputes, causes of action and
obligations referred to in the preceding Article I.
For the avoidance of any doubt it is hereby expressly declared and
agreed between the parties hereto that the execution of this Release by the
Company and its consent to make any payment to the Director provided for herein,
shall not be deemed a recognition, admission, acknowledgment or acceptance by
the Company of any claim alleged by the Director as provided for in the Preamble
hereof.
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ARTICLE III
MISCELLANEOUS
3.1 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.
3.2 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
as well as Purchaser.
3.3 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 Company, to:
New Dimension Software, Ltd.
ATIDIM, Building 7
POB 85168
Xxx Xxxx 00 000
Xxxxxx
Telecopy: 972-3-645-1100
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxx
Telecopy: (000) 000-0000
Xxx Xxxxx, Xxxxxxxxx & Co.
103 Hahashmonaim St.
Israel
Attn: Xxxxxxx Xxxxxxxxx
Telecopy: 972-3-561-0624
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(b) if to Director, to:
x/x Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx. 0
Xxx Xxxx 64 733
Israel
Telecopy: 972-3-696-3115
(c) if to Purchaser, to:
BMC Software, Inc.
0000 XxxxXxxx Xxxx.
Xxxxxxx, Xxxxx
Attn: X. Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
Xxxxxx, Xxx & Xxxxxx
Asia House
0 Xxxxxxxx Xxxxxx
Xxx-Xxxx 00 000
Xxxxxx
Attn: Xxxxxx Xxxxxx
Telecopy: 972-3-696-6464
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.
3.4 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
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invalidity, 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.
3.5 Third Party Beneficiary. This agreement is intended to be for the
benefit of, and shall be enforceable by, Purchaser. In the event of Director's
death, the benefits and obligations of Director hereunder shall inure to his
successors and heirs.
3.6 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by a Director of any covenants or agreements
contained in this Agreement will cause Company and 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 Company or Purchaser shall be entitled to the remedy of specific performance
of such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which they may be entitled, at law or in equity.
3.7 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.
3.8 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.
3.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Israel, without giving effect to the
principles of conflicts of law thereof.
3.10 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.
3.11 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed on this 7th day of March, 1999.
[NEW DIMENSION SOFTWARE LOGO]
COMPANY
By:
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Name:
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Title:
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By:
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Name:
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Title:
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DIRECTOR:
Name: Applicable Director
