PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
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AGREEMENT AMENDMENT NO. 2
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MADE AS OF THE 25TH DAY OF FEBRUARY 2004
BETWEEN HP-OMS (ISRAEL) LTD.
0 XX'XXXXX XXXXXX
XX'XXXXX , XXXXXX
("HP-OMS")
AND HEWLETT-PACKARD (ISRAEL) LTD.
0 XX'XXXXX XXXXXX
XX'XXXXX , XXXXXX
("HP")
AND TECNOMATIX LTD.
00 XXXX XXXX XXXXXX,
XXXXXXX XXXXXXX, XXXXXX
("CUSTOMER")
WHEREAS, Customer and HP-OMS entered on October 30, 2003 into a
SERVICES AGREEMENT FOR HP-OMS OPERATIONS SERVICES (the
"AGREEMENT"); and
WHEREAS, the parties entered on December 29, 2003 into Amendment
No. 1 to the Agreement (the Agreement and all Exhibits
thereto, as previously amended by Amendment No. 1, shall
be referred to herein as the "SERVICES AGREEMENT"); and
WHEREAS, Customer desire that HP-OMS shall assign the Services
Agreement and all of HP-OMS' rights and obligations
thereunder to HP; and HP-OMS and HP agree to such assignment;
and
WHEREAS, the parties wish to further amend and/or clarify certain
provisions in the Services Agreement as set forth herein.
NOW, THEREFORE, in consideration of the covenants, promises and representations
set forth herein, the parties agree as follows:
PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
1. Unless otherwise defined herein, capitalized terms used in this Amendment
No. 2 shall have the meaning ascribed to them under the Services Agreement.
2. HP-OMS hereby assigns the Services Agreement and all its rights and
obligations thereunder to HP, its parent company, and HP hereby accepts
such assignment and agrees to be bound and obligated by all the terms and
conditions of the Services Agreement.
As used in this Agreement, unless expressly otherwise stated or evident in
the context, the term "HP-OMS (Israel) Ltd" shall be replaced by
"Hewlett-Packard (Israel) Ltd." and the term "HP-OMS" shall be replaced by
"HP".
3. Customer agrees that HP may engage and use the services of HP-OMS as a
subcontractor to provide the Services under the Services Agreement to
Customer.
4. The parties hereby declare and acknowledge that all the conditions
precedent included in Section 2.5 of the Services Agreement have been fully
satisfied and fulfilled. HP-OMS and HP specifically declare that they have
received the approval of HP Corporate to the Services Agreement and to this
Amendment No. 2. Notwithstanding anything to the contrary in the Services
Agreement, the Effective Date of the Services Agreement shall be, for all
intents and purposes, the signature date hereof and the Commencement Date
shall be May 1, 2004.
5. Sub-section (b) of Section 20.2 of the Services Agreement (TERMINATION FOR
CAUSE BY CUSTOMER; OTHER REMEDIES) shall be amended to read in its entirety
as follows:
(B) "CHANGE OF CONTROL. Customer may terminate this Agreement immediately
upon written notice to HP in the event that HP experiences (in one
transaction or any series of transactions) a change of majority
ownership, following which the majority ownership of HP shall be held
by a third party other than Hewlett Packard Company or an entity
Controlled by it ("CHANGE OF CONTROL"), unless prior to such Change of
Control Customer is notified of such change and (i) Hewlett-Packard
Volendam B.V. or any other entity within the Hewlett Packard Company
Group, which is approved by Customer, agrees in writing to accept an
assignment of this Agreement; or (ii) Customer provides its written
consent to such Change of Control."
6. Sub-section 20.2(c) of the Services Agreement (GUARANTEE FROM
HEWLETT-PACKARD ISRAEL LTD.) shall be deleted from the Services Agreement
in its entirety.
7. Section 20.3 of the Services Agreement (MUTUAL RIGHT OF TERMINATION) shall
be amended to read in its entirety as follows:
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
"MUTUAL RIGHT OF TERMINATION. Either Party may terminate this
Agreement, immediately at any time by written notice to the other
Party, if the other Party (or in the event the other Party is
Customer, then Tecnomatix Technologies Ltd.) (i) has a receiver
appointed or an assignee for the benefit of creditors; (ii) is or
becomes insolvent or is unable to pay debts as they become due; (iii)
ceases to trade for a period of sixty (60) days (either in whole or as
to any part or division involved in the performance of this Agreement)
or (iv) ceases to operate in the normal course of business for a
period of sixty (60) days (each of (i)-(iv) above an "INSOLVENCY
EVENT"), unless the Insolvency Event is removed or is no longer in
effect within forty-five (45) days of receipt of the notice of
termination, in which case the initial Insolvency Event shall not be
grounds for termination."
8. The words "Exhibit L Guarantee of Hewlett-Packard Israel Ltd." shall be
deleted from Section 21.10 of the Services Agreement.
9. Exhibit L (Guarantee of Hewlett-Packard Israel Ltd.) shall be omitted from
the Services Agreement.
10. On the Commencement Date and as a security for satisfying its obligations
for payment under the Services Agreement of the applicable portions of the
Target Price due to HP in each of the first three full quarters of the Term
beginning July 1, 2004 (each a "QUARTERLY PAYMENT"), Customer shall deposit
with HP three checks made by Customer to the benefit of HP at the estimated
amounts due for each such three Quarterly Payments. The three security
checks shall be dated August 15, 2004 (the "FIRST CHECK"), November 15,
2004 (the "SECOND CHECK") and February 15, 2005 (the "THIRD CHECK")
(collectively referred to as the "CHECKS"). For the avoidance of doubt it
is clarified that payment by HP to Customer of the one time fee in the
amount of US$[**] (Section 2.3 of Exhibit E) shall be subject to Customer
depositing the Checks as stipulated herein.
HP may only deposit and cash the Checks in the event that Customer fails to
pay to HP the applicable Quarterly Payment, in whole or in part, on its due
date. In the event that HP deposits any of the Checks due to partial
non-payment by Customer of the applicable Quarterly Payment, it is agreed
that concurrently with the deposit of such Check HP shall deposit with
Customer's bank account an amount equal to the difference between (i) the
amount that was paid by Customer plus the amount of the Check to be
deposited by HP and (ii) the Quarterly Payment. Thus, the equation for the
settlement between the parties shall be:
A+B-C =X.
A = Amount that was paid by Customer; B = Amount of the Check; C =
Quarterly Payment; and X = Amount to be deposited by HP in the account of
Customer.
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
Under no circumstances shall the First Check, the Second Check and the
Third Check be used to secure and/or be deposited and cashed by HP to
satisfy the payment of any amount due by Customer to HP under the Services
Agreement or otherwise other than the respective Quarterly Payment during
the Term.
It is hereby specifically agreed that HP shall return to Customer the First
Check, the Second Check and the Third Check within four (4) business days
after the full payment by Customer of the respective Quarterly Payment.
11. This Amendment No. 2 shall be deemed for all intents and purposes as an
integral part of the Services Agreement. The Services Agreement and this
Amendment No. 2 constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, between the parties hereto with
respect to the subject matter hereof.
12. This Amendment No. 2 may be executed in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment
No. 2.
- SIGNATURE PAGES FOLLOW -
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PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT FROM THE SEC
IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to the
Services Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
TECNOMATIX LTD. HP-OMS (ISRAEL) LTD.
By: /s/ Harel Beit-on By: /s/ Xxxx Xxxxx
--------------------- ------------------
Name: Harel Beit-On Name: Xxxx Xxxxx
Title: Chairman of the Board Title: Chairman of the Board
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
------------------- --------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxx
Title: President and CEO Title: Director and HP Israel Services
General Manager
SIGNED FOR AND ON BEHALF OF
HEWLETT-PACKARD ISRAEL LTD.
By: /s/ Xxxx Xxxxx
------------------
Name: Xxxx Xxxxx
Title: General Manager
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