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EXHIBIT 99.5
THIRD AMENDMENT
TO DISTRIBUTION AGREEMENT DATED OCTOBER 28, 1994
AS AMENDED ON APRIL 24, 1997 AND OCTOBER 31, 1997
This Amendment is made and entered into as of this 6th day of March, 1999.
Among
NEW DIMENSION SOFTWARE LTD.
a corporation organized and existing under the laws
of Israel with its principal place of business at
Xxxx. 0, Xxxxx Xxxxxxxxxx Xxxx, X.X. Xxx 00000, Xxx
Xxxx, Xxxxxx 61430 (hereinafter referred to as: the
"Company")
and
XXXXX & XXXXXXX EUROPE
a corporation organized and existing under the laws
of the Republic of Ireland with its principal place
of business at Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxx 00, Xxxxxxx (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") and on October 31, 1997 (hereinafter: the "Second
Amendment") and the Company, Distributor and Xxxxx & Babbage,
Inc., the parent company of Distributor ("Xxxxx"), 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 Xxxxx (the "Letter Agreement"); and
WHEREAS the Company and Distributor wish to amend certain provisions of
the 1994 Distribution Agreement, the First Amendment, the Second
Amendment and the Letter Agreement, subject to and in accordance
with the provisions and conditions herein.
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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 Third Amendment constitutes an integral part hereof.
This Third Amendment's captions are provided for the sake of convenience
and shall not be used to constitute the provisions hereof.
2. Definition, Terms and Provisions of the 1994 Distribution Agreement, First
Amendment, Second 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 and the Letter Agreement shall apply hereto mutatis
mutandis.
3. Sections 7.1 and 7.2 of the 1994 Distribution Agreement are hereby amended
to read in their entirety as follows:
"7.1 In the event of a Change of Control (other than a Change of Control
by the Company where BMC Software, or a subsidiary of BMC Software
is the Merging Party) by either party or by BBI, both the Company
and the Distributor (hereinafter: the "Terminating Party") shall
have the right (but not the obligation) to terminate the Agreement
as of the date a public announcement concerning such Business
Transaction (by an official press release or otherwise) has been
made (hereinafter: the "Triggering Event"), in accordance with the
following provisions:
4. Effective Date
The effective date of this Third Amendment is March 6, 1999.
5. General
5.1 Other than as expressly stated and amended hereinabove the 1994
Distribution Agreement as amended in the First Amendment and the
Second Amendment, 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 and the Second Amendment 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 or the Letter Agreement, this Third
Amendment shall prevail.
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5.2 The provisions contained herein set forth the entire amendment of the
1994 Distribution Agreement as amended in the First Amendment and the
Second Amendment with respect to the subject matter hereof and
supersedes all previous communications, representations or agreements
(excluding the Letter Agreement), whether oral 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 officer is the Company's Chief
Executive Officer and in case of the Distributor the designated officer
is the Chief financial Officer of Xxxxx & Xxxxxxx Inc.
IN WITNESS WHEREOF, the parties have executed this Third Amendment.
New Dimension Software Ltd. Xxxxx & Babbage Europe
[NEW DIMENSION SOFTWARE LTD. LOGO]
By: /s/ XXXX X. XXXXX By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxx Name: President & CEO, Xxxxx & Babbage, Inc.
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Title: CHAIRMAN Title: Xxxx X. Xxxxxx
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By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: CEO
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