EXECUTION COPY
CONSULTING AGREEMENT (II)
THIS CONSULTING AGREEMENT (II) (the "Agreement") is entered into as of July
___, 1997, by and between Sento Technical Innovations Corporation, a Utah
corporation ("Sento"), and Australian Software Innovations (Services) Pty. Ltd.
ACN 000-000-000, a limited company organized under the laws of Australia
("ASI").
RECITALS
WHEREAS, pursuant to that certain Intellectual Property Purchase Agreement
dated as of July ___, 1997 (the "IP Purchase Agreement"), among Sento, ASI,
Kilat Holdings Pty. Limited ("Kilat"), Eng Xxx and Xxxx Xxx (the "Shareholders")
and that certain Asset Purchase Agreement dated as of July ___, 1997 (the "Asset
Purchase Agreement"), among Sento, Centerpost Innovations Pty. Ltd.
("Centerpost"), ASI, Kilat and the Shareholders, Sento will acquire certain
assets of ASI (the "ASI Assets"); and
WHEREAS, pursuant to that certain Asset Purchase and Services Agreement
dated as of June 30, 1997 (the "BMC Agreement"), among Sento, BMC Software, Inc.
and BMC Software (Cayman) LDC or its assignee (collectively, "BMC"), certain
shareholders of Sento, ASI and Eng Xxx ("Xxx"), Sento will sell the ASI Assets
to BMC; and
WHEREAS, in connection with the transactions contemplated by the IP
Purchase Agreement, the Asset Purchase Agreement and the BMC Agreement, Sento
desires to engage ASI on a consulting basis on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the promises and covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sento and ASI hereby agree as
follows:
1. SERVICES. Sento hereby engages ASI as an independent contractor for
the Term (as defined below) to provide certain consulting services to be
determined from time to time in the discretion of the Board of Directors of
Sento, including without limitation facilitation of the transfer of the ASI
Assets from ASI to Sento and from Sento to BMC pursuant to the IP Purchase
Agreement, the Asset Purchase Agreement and the BMC Agreement. ASI hereby
agrees to provide such services to Sento.
2. TERM. The term of this Agreement (the "Term") shall commence on the
date hereof (the "Commencement Date") and continue through and expire on the
third anniversary of the Commencement Date, unless earlier terminated as
permitted herein.
3. CONSIDERATION. Subject to the termination of this Agreement as
permitted herein, commencing on the ___ day of October, 1997 and continuing on
the ____ day of each January, April, July and October thereafter through and
including the ____ day of April, 2000, Sento shall make payments to ASI as
consulting fees for services hereunder in the amount of Twelve Thousand Five
Hundred U.S. Dollars ($12,500) each.
4. TERMINATION.
(a) Sento may terminate this Agreement immediately upon notice to ASI
in its discretion if at any time during the Term ASI shall cease to be formally
engaged by Sento or one of its subsidiaries as an officer, director, employee or
independent contractor.
(b) Either party may terminate this Agreement for cause provided that
the complaining party shall provide at least fifteen (15) days' written notice
to the breaching party specifying the nature and, so far as then known, the
extent of the breach and the action required to correct the breach. The
breaching party shall be afforded fifteen (15) days (or such additional time as
the complaining party may determine, as confirmed in writing, to be reasonable)
to cure the breach or, as determined by the complaining party, to achieve
substantial cure if a complete cure cannot be reasonably effectuated within the
designated period. If the breach remains uncured at the expiration of the
designated period, this Agreement may be terminated by written notice given by
the complaining party at any time while the breach remains uncured thereafter,
and such termination shall be effective as of the date of such notice or such
later date as may be provided therein.
5. NOTICES. Except when actual receipt is expressly required by the
terms hereof, all notices and demands required or permitted under this Agreement
shall be in writing and shall be deemed to have been given or delivered:
(i) when delivered in person to the intended recipient, (ii) upon receipt of a
confirmation of a facsimile transmission to the intended recipient, or
(iii) after deposit in the United States or Australian mail in a sealed envelope
or container, either registered or certified mail, return receipt requested,
postage prepaid, addressed by name and address to the intended recipient as
follows:
To Sento: Sento Technical Innovations Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxx, Xxxx 00000
Attn: Xxxxxx X. Bench, President
Telecopier: (000) 000-0000
To ASI: Australian Software Innovations
(Services) Pty. Ltd.
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx XXX 0000
Telecopier: 00-0-000-0000
6. MISCELLANEOUS.
(a) CONSTRUCTION PRINCIPLES. The headings and underlined Section
titles set forth in the text of this Agreement are for guidance only and shall
have no significance in the interpretation of this Agreement. When this
Agreement refers to a Section by number or letter without further
identification, the reference shall be construed as pertaining to the
corresponding Section of this Agreement unless the context clearly requires
reference to another instrument, agreement or document.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the specific subject matter
hereof, and this Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter. Notwithstanding the
above, the parties acknowledge the existence as separate agreements and
obligations of the Consulting Agreement dated as of the date hereof between
Sento and Xxx and the Services Agreement dated as of the date hereof between
Centerpost and ASI.
(c) WAIVER, MODIFICATION OR CANCELLATION. Any waiver, alteration or
modification of any of the terms of this Agreement or cancellation or
replacement of this Agreement shall not be valid unless in writing and signed by
the parties.
(d) WAIVER OF BREACH. The waiver by Sento of any breach of any
provision of this Agreement by ASI shall not operate or be construed as a waiver
of any subsequent breach by ASI.
(e) NON-EXCLUSIVITY OF REMEDIES. Except as specifically provided
herein, the rights and remedies of the parties hereto shall not be mutually
exclusive, and the exercise of one or more of the provisions of this Agreement
shall not preclude the exercise of any other rights or remedies provided for by
this Agreement or by law, equity, statute or otherwise. Each of the parties
confirms that damages at law may be an inadequate remedy for a breach or
threatened breach of any of the provisions hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Utah, without reference to its choice of law
provisions.
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IN WITNESS WHEREOF, Sento and ASI have duly executed and delivered this
Agreement as of the date first written above.
"SENTO":
Sento Technical Innovations Corporation
By: ______________________________________________________
Its: ______________________________________________________
"ASI":
THE COMMON SEAL of AUSTRALIAN SOFTWARE
INNOVATIONS (SERVICES) PTY. LTD
ACN 000-000-000, a limited company organized
under the laws of Australia was hereunto
affixed in accordance with its articles of
association in the presence of:
_________________________ ______________________________
Signature of Director Signature of
Director/Secretary
_________________________ ______________________________
Print Name Print Name
_________________________ ______________________________
Office Held Office Held