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March 7, 1999
BMC Software, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Distribution Agreement (the "Distribution Agreement") by and
among New Dimension Software Ltd. (the "Company"), ▇▇▇▇▇ &
Babbage Europe (the "Distributor") and ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc.
("BBI") dated October 28, 1994, as amended through the date
hereof.
Gentlemen:
In consideration for you entering into that certain Share Purchase and
Tender Agreement dated on even date herewith, the Company hereby agrees not to
give a Termination Notice to the Distributor in connection with its Business
Transaction with you before April 10, 1999.
In addition, each of the Company and you, on behalf of BBI and the
Distributor, agree that as soon as practicable after the consummation of the
Business Transaction between you and BBI we shall enter into the Fourth
Amendment to the Distribution Agreement, which shall be in substantially the
form attached hereto as Exhibit A.
All terms not otherwise defined herein shall have the same meaning
afforded in the Distribution Agreement.
New Dimension Software, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chairman
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By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: CEO
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Agreed and Accepted this
7th day of March, 1999:
BMC Software, Inc.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
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EXHIBIT A
FOURTH AMENDMENT
TO
DISTRIBUTION AGREEMENT
DATED OCTOBER 28, 1994 AS AMENDED ON
APRIL 24, 1997, OCTOBER 31, 1997 AND MARCH , 1999
This Amendment is made and entered into as of this ____ day of __________, 1999.
Among
NEW DIMENSION SOFTWARE LTD.
a corporation organized and existing under the laws of Israel
with its principal place of business at ▇▇▇▇. ▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇. O. ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as: the "Company")
and
▇▇▇▇▇ & ▇▇▇▇▇▇▇ EUROPE
a corporation organized and existing under the laws of the
Republic of Ireland with its principal place of business at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇ (hereinafter referred to as: the "Distributor")
WHEREAS on October 26, 1994, the Company and the Distributor entered
into a distribution agreement (hereinafter: "the 1994
Distribution Agreement") whereby the Distributor was granted
exclusive distribution rights in certain territories with
respect to certain proprietary Software Products of the
Company; and
WHEREAS the 1994 Distribution Agreement has been amended by the
Company and Distributor on April 24, 1997 (hereinafter: the
"First Amendment"), on October 31, 1997 (hereinafter: the
"Second Amendment") and on March ___, 1999 (hereinafter: the
"Third Amendment") and the Company, Distributor and ▇▇▇▇▇ &
Babbage, Inc., the parent company of Distributor ("▇▇▇▇▇"),
have entered into that certain letter agreement dated December
22, 1998, which provides for additional agreements between the
Company and Distributor with respect to the Company's right to
notify Distributor of its termination of the Distribution
Agreement in connection with the announcement by BMC Software,
Inc. ("BMC") of its acquisition of ▇▇▇▇▇ (the "Letter
Agreement"); and
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WHEREAS the Company and Distributor wish to amend certain provisions
of the 1994 Distribution Agreement, the First Amendment, the
Second Amendment, the Third Amendment and the Letter
Agreement, subject to and in accordance with the provisions
and conditions herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
1. Preamble, Schedules and Captions
The Preamble to this Fourth Amendment constitutes an integral part
hereof. This Fourth Amendment's captions are provided for the sake of
convenience and shall not be used to construe the provisions hereof.
2. Definition, Terms and Provisions of the 1994 Distribution Agreement,
First Amendment, Second Amendment, Third Amendment and the Letter
Agreement
Except as expressly provided for herein, all the definitions, terms and
provisions of the 1994 Distribution Agreement, the First Amendment, the
Second Amendment, Third Amendment and the Letter Agreement shall apply
hereto mutatis mutandis.
3. Sections 7.2 and 7.3 of the 1994 Distribution Agreement are hereby
amended to read in their entirety as follows:
"7.2 The Terminating Party may terminate the Agreement, should it
elect to do so at its sole and exclusive discretion, during a
period of 10 (ten) months as of the last day of the quarter in
which the Triggering Event has occurred (or, in the event of a
Business Transaction by the Distributor with BMCS, occurring
at any time between the effective date of the Second Amendment
(October 31, 1997) and up to December 31, 1999) by giving the
other party a written notice of its intention to so terminate
the Agreement (hereinafter: the "Termination Notice");
provided, that the Company shall not give a Termination Notice
to the Distributor in connection with its Business Transaction
with BMC Software before the day first succeeding the
termination of BMC Software's tender offer to acquire ordinary
shares NIS 0.01 of the Company.
7.3 If a Termination Notice has been given by the Terminating
Party to the other party hereof, the Agreement shall be
terminated within 60 days as of the receipt of such
Termination Notice (hereinafter the "Effective Termination
Date")."
4. Effective Date
The effective date of this Fourth Amendment is ______________, 1999.
5. General
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5.1 Other than as expressly stated and amended hereinabove the
1994 Distribution Agreement as amended in the First Amendment,
the Second Amendment and the Third Amendment and the Letter
Agreement, and the terms and provisions therein, shall
continue to exist and bind the parties and nothing contained
herein shall be deemed to derogate from or change the 1994
Distribution Agreement, and the First Amendment, the Second
Amendment and the Third Amendment and the Letter Agreement
thereof or any of the parties' rights and obligations in
accordance therewith other than as expressly provided for
herein and in the Letter Agreement. However, should any
provision herein contradict any provision of the 1994
Distribution Agreement, the First Amendment, the Second
Amendment, the Third Amendment or the Letter Agreement, this
Fourth Amendment shall prevail.
5.2 The provisions contained herein set forth the entire amendment
of the 1994 Distribution Agreement as amended in the First
Amendment, the Second Amendment and the Third Amendment with
respect to the subject matter hereof and supersedes all
previous communications, representations or agreements
(excluding the Letter Agreement), whether oral or written with
respect to the subject matter hereof.
5.3 Subject to any legal duty to which both parties, being public
companies, are subject, the contents and timing of any public
announcement or press release regarding this Third Amendment
are to be approved in advance by the designated officers of
the parties hereto. In case of the Company the designated
officer is the Company's Chief Executive Officer and in case
of the Distributor the designated officer is the Chief
Financial Officer of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Inc.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment.
New Dimension Software Ltd. ▇▇▇▇▇ & Babbage Europe
By: By:
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Name: Name:
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Title: Title:
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