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EXHIBIT C
SHAREHOLDER UNDERTAKING
Shareholder Undertaking (the "Undertaking") dated as of May 22, 2000 by
________________________ ("Shareholder") in favor of and for the benefit of BMC
Software, Inc., a Delaware corporation ("BMC").
RECITALS:
BMC, Hansen Acquisitions Ltd., an Israeli corporation and a
wholly-owned subsidiary of BMC ("Merger Sub"), and OptiSystems Solutions, Ltd.,
Ltd., an Israeli corporation ("OptiSystems Solutions, Ltd."), are entering into
an Agreement of Merger of even date herewith (the "Merger Agreement") that
provides (subject to the conditions set forth therein) for the merger of Merger
Sub with and into OptiSystems Solutions, Ltd. (the "Merger"). Capitalized terms
used but not otherwise defined in this Undertaking have the meanings ascribed to
such terms in the Merger Agreement.
BMC has set, as an inducement for entering into the Merger Agreement, a
requirement that it receive the undertakings set forth herein from certain
shareholders of OptiSystems Solutions, Ltd., including Shareholder, and
Shareholder has agreed to deliver this Undertaking.
In order to induce BMC to enter into the Merger Agreement, Shareholder
is making the undertakings set forth herein.
UNDERTAKINGS
Shareholder, intending to be legally bound, agrees as follows:
1. Certain Definitions.
For purposes of this Undertaking:
1.1 "Acquisition Proposal" shall mean any proposal or inquiry
that constitutes, or may reasonably be expected to lead to, an
Acquisition Transaction.
1.2 "Acquisition Transaction" shall mean, other than the
Merger, any acquisition or purchase of a substantial amount of assets
of, or any equity interest in, OptiSystems Solutions, Ltd., or any
merger, consolidation, business combination, amalgamation,
recapitalization, liquidation, dissolution, or similar transaction
involving OptiSystems Solutions, Ltd. or any of its subsidiaries or any
other material corporate transactions the consummation of which would,
or could reasonably be expected to, impede, interfere with, prevent or
materially delay the Merger.
1.3 "Expiration Date" shall mean the earlier of (i) twelve
(12) months following the date upon which the Merger Agreement is
validly terminated, or (ii) the date upon which the Merger becomes
effective.
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1.4 For purposes of this Agreement, Shareholder shall be
deemed to "Own" or to have acquired "Ownership" of a security if
Shareholder: (i) is the record owner of such security; or (ii) is the
"beneficial owner" (within the meaning of Rule 13d-3 under the Exchange
Act) of such security.
1.5 "Subject Securities" shall mean: (i) all securities of
OptiSystems Solutions, Ltd. (including all OptiSystems Solutions, Ltd.
Shares and all options, warrants and other rights to acquire
OptiSystems Solutions, Ltd. Shares) Owned by Shareholder as of the date
of this Undertaking; and (ii) all additional securities of OptiSystems
Solutions, Ltd. (including all additional OptiSystems Solutions, Ltd.
Shares and all additional options, warrants and other rights to acquire
OptiSystems Solutions, Ltd. Shares) of which Shareholder acquires
Ownership during the period from the date of this Undertaking through
the Expiration Date.
1.6 For purposes of this Agreement, a Person shall be deemed
to have effected a "Transfer" of a security if such Person directly or
indirectly: (i) sells, pledges, encumbers, grants an option with
respect to, transfers or disposes of such security or any interest in
such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of
an option with respect to, transfer of or disposition of such security
or any interest therein.
2. Transfer of Subject Securities.
2.1 No Transfer of Subject Securities. Shareholder agrees
that, during the period from the date of this Undertaking through the
Expiration Date, Shareholder shall not cause or permit any Transfer of
any of the Subject Securities to be effected, other than the Transfer
of the Subject Securities to Shareholders' heirs, estate or executors
upon death of the Shareholder.
2.2 No Transfer of Voting Rights. Shareholder agrees that,
during the period from the date of this Undertaking through the
Expiration Date, Shareholder shall ensure that: (i) none of the Subject
Securities is deposited into a voting trust; and (ii) other than the
Irrevocable Proxy dated of even date herewith, no proxy or
power-of-attorney is granted, and no voting agreement or similar
agreement is entered into, with respect to any of the Subject
Securities.
3. Termination Fee. If an Acquisition Transaction is consummated on or
before the Expiration Date, Shareholder shall pay to BMC, no later than two
business days after the consummation of such Acquisition Transaction, a
nonrefundable cash fee (provided that to the extent that Shareholder does not
have access to sufficient cash to pay the fee, Shareholder shall be entitled to
satisfy such payment by making the payment to BMC in the form of the securities
or other property Shareholder received in the Acquisition Transaction, valuing
such securities or other property in the manner set forth below) in an amount
equal to the difference between (i) the aggregate value of the consideration
received or to be received by the Shareholder in connection with such
Acquisition Transaction (including pursuant to any liquidation of OptiSystems
Solutions, Ltd. following consummation of an Acquisition Transaction) and (ii)
the Per Share
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Merger Consideration multiplied by the number of Subject Securities.
Notwithstanding the foregoing, this Section 3 shall not apply to any of the
Subject Securities that are acquired by BMC from Shareholder pursuant to the
Stock Option Agreement of even date herewith. If the consideration to be
offered, paid or received pursuant to an Acquisition Transaction shall be other
than cash, the value of such consideration shall be determined in good faith by
an independent, nationally recognized investment banking firm selected by BMC
and reasonably acceptable to Shareholder, which determination shall be
conclusive for all purposes of this Undertaking.
4. Waiver of Appraisal Rights. Shareholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Merger or any related transaction that Shareholder or any
other Person may have by virtue of the ownership of any outstanding OptiSystems
Solutions, Ltd. Shares.
5. No Solicitation. Shareholder agrees that, during the period from the
date of this Undertaking through the Expiration Date, Shareholder shall not,
directly or indirectly, and Shareholder shall ensure that his agents do not,
directly or indirectly: (a) solicit, initiate, encourage (including by way of
furnishing information) or take any other action to facilitate, any inquiry or
the making of any Acquisition Proposal or agree to endorse any Acquisition
Proposal or (b) propose, enter into or participate in any discussions or
negotiations regarding any of the foregoing or furnish to another Person any
information with respect to OptiSystems Solutions, Ltd.'s business, properties
or assets or any of the foregoing, or otherwise cooperate in any way with, or
assist, participate in, facilitate or encourage, an effort or attempt by any
other Person to do or seek any of the foregoing. Shareholder shall immediately
cease and cause to be terminated, and Shareholder shall ensure that his agents
immediately cease and cause to be terminated, any existing discussions with any
Person that relate to any Acquisition Proposal. If Shareholder receives an
Acquisition Proposal, then Shareholder shall immediately inform BMC of the terms
and conditions of such proposal and the identity of the person making it and
shall keep BMC fully informed of the status and details of any such Acquisition
Proposal and of all steps it is taking in response to such Acquisition Proposal.
6. Prohibition on Ownership of BMC Securities. Shareholder shall not
obtain or otherwise acquire Ownership of any securities of BMC during the period
commencing on the date of this Undertaking and ending on the Expiration Date.
7. Representations And Warranties Of Shareholder. Shareholder hereby
represents and warrants to BMC as follows:
7.1 Authorization, etc. Shareholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Undertaking and to perform his obligations hereunder. This
Undertaking 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 debtors, and (ii)
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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 Undertaking
by Shareholder does not, and the performance of this
Undertaking 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 Subject Securities
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 Undertaking
by Shareholder does not, and the performance of this
Undertaking by Shareholder will not, require any consent of
any Person.
7.3 Title to Securities. As of the date of this Undertaking:
(i) Shareholder holds of record (free and clear of any encumbrances)
the number of outstanding OptiSystems Solutions, Ltd. Shares set forth
under the heading "Shares Held of Record" on the signature page hereof;
(ii) Shareholder holds (free and clear of any encumbrances) the
options, warrants and other rights to acquire OptiSystems Solutions,
Ltd. Shares set forth under the heading "Options and Other Rights" on
the signature page hereof; (iii) Shareholder Owns the additional
securities of OptiSystems Solutions, Ltd. set forth under the heading
"Additional Securities Beneficially Owned" on the signature page
hereof; and (iv) Shareholder does not directly or indirectly Own any
shares or other securities of OptiSystems Solutions, Ltd., or any
option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares or other securities of OptiSystems Solutions,
Ltd., other than the shares and options, warrants and other rights set
forth on the signature page hereof.
7.4 No Ownership of Securities of BMC. Shareholder does not
Own any BMC Common Stock or any other securities of BMC.
7.5 Accuracy of Representations. The representations and
warranties contained in this Undertaking are accurate in all respects
as of the date of this Undertaking, will be accurate in all respects at
all times through the Expiration Date and will be accurate in all
respects as of the date of the consummation of the Merger as if made on
that date.
8. Additional Covenants Of Shareholder.
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8.1 Further Assurances. From time to time and without
additional consideration, Shareholder shall execute and deliver, or
cause to be executed and delivered, such additional documents and shall
take such further actions, as BMC may reasonably request for the
purpose of carrying out and furthering the intent of this Undertaking.
8.2 Legend. Immediately after the execution of this
Undertaking (and from time to time upon the acquisition by Shareholder
of Ownership of any OptiSystems Solutions, Ltd. Shares prior to the
Expiration Date), Shareholder shall ensure that each certificate
evidencing any outstanding OptiSystems Solutions, Ltd. Shares or other
securities of OptiSystems Solutions, Ltd. Owned by Shareholder bears a
legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE
UNDERTAKING DATED AS OF MAY 22, 2000, BETWEEN NOAH PERLMAN AND
BMC SOFTWARE, INC. AS IT MAY BE AMENDED, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
8.3 Proxy. Shareholder on the date hereof has validly executed
and delivered a proxy attached hereto as Exhibit A (the "Proxy").
9. Miscellaneous.
9.1 Survival of Representations, Warranties and Agreements.
All representations, warranties, covenants and agreements made by
Shareholder in this Undertaking shall survive (i) the consummation of
the Merger, (ii) any termination of the Merger Agreement, and (iii) the
Expiration Date.
9.2 Indemnification. Shareholder shall hold harmless and
indemnify BMC and BMC's officers, directors, employees, agents,
representatives and affiliates (the "BMC Indemnified Parties") from and
against, and shall compensate and reimburse BMC and BMC'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 BMC Indemnified Parties, or to which BMC or any the BMC
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 Undertaking, 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 Undertaking.
THE PROVISIONS OF THIS SECTION 9.2 SHALL APPLY NOTWITHSTANDING THE
SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT
OF THE BMC INDEMNIFIED PARTIES.
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9.3 Expenses. Except as otherwise provided in the Agreement of
Merger or in this Undertaking, all costs and expenses incurred in
connection with the transactions contemplated by this Undertaking shall
be paid by the party incurring such costs and expenses.
9.4 Notices. Any notice or other communication required or
permitted to be delivered to BMC or Shareholder under this Undertaking
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 BMC or
Shareholder below (or to such other address or facsimile telephone
number as BMC or Shareholder shall have specified in a written notice
given to the other):
If to Shareholder to:
Name:
Address:
Facsimile:
with a copy to:
Name:
Address:
Attention:
Facsimile:
If to BMC to:
BMC Software, Inc.
2101 CityWest Blvd.
Houston, Texas 77042
Attention: Robert H. Whilden, Jr.
Facsimile: (713) 918-7306
with a copy to:
Name:
Address:
Attention:
Facsimile:
9.5 Severability. In the event that any provision of this
Undertaking, or the application thereof, becomes or is declared by a
court of competent jurisdiction to be illegal, invalid or
unenforceable, the remainder of this Undertaking will continue in full
force and effect and the application of such provision to other Persons
or circumstances
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will be interpreted so as reasonably to effect the intent of
Shareholder and BMC. Shareholder further agrees to replace such void or
unenforceable provision of this Undertaking 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.
9.6 Entire Agreement; No Third Party Beneficiary. Except as
otherwise set forth in the Agreement of Merger, this Undertaking or the
Stock Option Agreement between Shareholder and BMC dated the date
hereof (the "Stock Option Agreement") this Undertaking (including the
Agreement of Merger, the Stock Option Agreement 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.
9.7 Assignability. Except as provided herein, neither this
Undertaking nor any of the interests or obligations hereunder may be
assigned or delegated by Shareholder, and any attempted or purported
assignment or delegation of any of such interests or obligations shall
be void. Subject to the preceding sentence, this Undertaking shall be
binding upon Shareholder and his heirs, estate, executors, personal
representatives, successors and assigns, and shall inure to the benefit
of BMC and its successors and assigns. Without limiting any of the
restrictions set forth in Section 2 or elsewhere in this Undertaking,
this Undertaking shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Undertaking, express or
implied, is intended to or shall confer upon any Person other than BMC
any right, benefit or remedy of any nature whatsoever under this
Undertaking.
9.8 Specific Performance. The parties hereto hereby
acknowledge and agree that the failure of any party to this Undertaking
to perform its agreements and covenants hereunder will cause
irreparable injury to the other party to this Undertaking 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.
9.9 Non-Exclusivity. The rights and remedies of BMC under this
Undertaking 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 BMC under this Undertaking, and the obligations and
liabilities of Shareholder under this Undertaking, are in addition to
their respective rights, remedies, obligations and liabilities under
common law requirements and under all applicable statutes, rules and
regulations.
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9.10 Governing Law; Venue.
9.10.1 This Undertaking 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 BMC or any party hereto shall be governed by the
provisions of the jurisdiction of its incorporation.
9.10.2 In any action between Shareholder and BMC
arising out of or relating to any provision of this
Undertaking: (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 9.4.
9.10.3 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.
9.11 Captions. The captions contained in this Undertaking are
for convenience of reference only, shall not be deemed to be a part of
this Undertaking and shall not be referred to in connection with the
construction or interpretation of this Undertaking.
9.12 Attorneys' Fees. If any legal action or other legal
proceeding relating to this Undertaking or the enforcement of any
provision of this Undertaking is brought against Shareholder, the
prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements (in addition to any other relief to which
the prevailing party may be entitled).
9.13 Waiver and Amendment. No failure on the part of BMC to
exercise any power, right, privilege or remedy under this Undertaking,
and no delay on the part of BMC in exercising any power, right,
privilege or remedy under this Undertaking, shall operate as a waiver
of such 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. BMC shall not be deemed to have waived any claim
available to BMC arising out of this Undertaking, or any power, right,
privilege or remedy of BMC under this Undertaking, 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 BMC, and
any such waiver shall not
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be applicable or have any effect except in the specific instance in
which it is given. This Undertaking may not be modified, amended,
altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
9.14 Construction.
9.14.1 For purposes of this Undertaking, 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.
9.14.2 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 Undertaking.
9.14.3 As used in this Undertaking, 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."
9.14.4 Except as otherwise indicated, all references
in this Undertaking to "Sections" are intended to refer to
Sections of this Undertaking.
9.14.5 The bold-faced or italicized headings
contained in this Undertaking are for convenience of reference
only, shall not be deemed to be a part of this Undertaking and
shall not be referred to in connection with the construction
or interpretation of this Undertaking.
9.15 Counterparts. This Undertaking 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.
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IN WITNESS WHEREOF, Shareholder has caused this Undertaking to be
executed as of the date first written above.
SHAREHOLDER
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Printed Name:
<TABLE>
<S> <C> <C>
Shares Held of Record Options and Other Rights Additional Securities Beneficially
Owned
</TABLE>
SHAREHOLDER UNDERTAKING
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