1
EXHIBIT 2.3
BETWEEN
FUNCTIONAL SOFTWARE PTY LIMITED
of the first part
AND
SENTO AUSTRALIA PTY LIMITED AND SENTO CORPORATION
of the second part
AND
XXXXXXX XXXXX XXXXX AND XXXX XXXXXX MAIN
of the third part
-------------------------------------------------------------------------------
DEED OF GUARANTEE
-------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx
and Associates
LAWYERS
Xxxxx 00, 0 X'Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
--------------------------------------------------------------------------------
Telephone: 00 0000 0000 Facsimile: 02 9221 8364 DX: 0000 XXXXXX
Email: xxxxxxxx@xxxxxxx.xxx.xx Ref: 985122
2
2
THIS DEED dated September 30, 1998
BETWEEN: FUNCTIONAL SOFTWARE PTY LIMITED (A.C.N. 009 421 194) of Suite 7,
Xxxxxx Court, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx in the State of
Western Australia (hereinafter called "the Company") of the first
part
AND: SENTO AUSTRALIA PTY LIMITED (A.C.N. 074 678 774) formerly known
as Australian Software Innovations (Services) Pty Limited of
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx in the State of New South Wales
and SENTO CORPORATION of 000 Xxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx
Xxxx, Xxxx, Xxxxxx Xxxxxx ("the Purchaser") of the second part
AND: XXXXXXX XXXXX XXXXX of 0x Xxxxxxxx Xxxxxx, Xxxxxxxxxx in the
State of New South Wales and XXXX XXXXXX MAIN of 0 Xxxxxxx Xxxx,
Xxxxxxxx in the State of Western Australia ("the Guarantors") of
the third part.
WHEREAS:
A. The Company is the proprietor of a software house business whose
principal place of business is located as Suite 7, Xxxxxx Court,
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx in the State of Western
Australia ("the Business").
B. The Company has agreed to sell the Business to the Purchaser on
certain terms and conditions and enter various other agreements
with the Purchaser.
C. The Guarantors have agreed to guarantee the obligations of the
Company on the terms contained in this Deed.
NOW THIS DEED WITNESSES:
In this Deed the following expressions have the following meanings:-
(a) "Consultant" means NorthPoint Software Ventures PTE Limited.
(b) "Consultancy Agreement" means the Agreement between the
Consultant and Sento Corporation in relation to the provision of
consultancy services.
(c) "Documents" means:-
(i) The Intellectual Property Business Assets Agreement
between the Company as vendor and Sento Corporation as
purchaser in respect of the Intellectual Property Business
Assets of the Business.
(ii) The Business Assets Agreement between the Company as
vendor and Sento Australia Pty Limited as purchaser in
respect of the Business Assets of the Business.
3
3
(iii) The four Deeds of Restraint of Trade between the Company,
the Purchaser, the Guarantor and Xxxxxx Xxxxxxxxxxxxxxx.
(d) "Obligations" means all of the obligations, whether financial or
otherwise, and whether arising before or after the date of
completion of any of the agreements comprising the Documents, of
the Company under the Documents to the Purchaser.
(e) "Total Consideration" means the aggregate sum actually paid by
the Purchaser to the Vendor and the Consultant and any other
party to the Documents whether on the making of this Agreement or
after the making of this Agreement in consideration of the
purchase of the Intellectual Property Business Assets, the
Business Assets, the covenants of Restraint of Trade and the
Consultancy Agreement.
2. In consideration of the Purchaser agreeing to enter the Documents with
the Company at the request of the Guarantors the Guarantors enter into
this guarantee (called "Guarantee") in favour of the Purchaser on the
terms specified in this Deed.
3. The Guarantors agree to guarantee all of the Company's Obligations.
4. This Guarantee extends to claims by the Purchaser
(a) for damages for breaches of the Obligations.;
(b) for repudiation of the Documents or any of them;
(c) for the Purchaser's reasonable legal and other expenses of
seeking to enforce the Obligations against the Company and the
Guarantor,
(d) for loss or damage consequent on disclaimer of the Documents on
the Company's insolvency, as if the Documents had not been
disclaimed.
5. Where the Guarantors comprise more than one party:-
(a) the term "Guarantors" in this Deed refers to each of the
Guarantors and to all of them;
(b) their obligations as Guarantors are joint and several;
(c) the Purchaser may enforce this Guarantee against all or any of
them;
(d) any notice or demand may be served on all of them by serving any
one of them;
(e) this Guarantee remains binding on the other Guarantors, even if
4
4
(i) any one of the Guarantors fails to execute the Documents or
to enter into this Guarantee;
(ii) this Guarantee is not binding on any one of the Guarantors.
6. The Purchaser is entitled to require the Guarantors to pay to the
Purchaser any outstanding amounts owing under the Documents or to
compensate the Purchaser for any loss or damage without the Purchaser
having instituted any proceedings against the Company in respect of such
claims or breaches.
7. This Guarantee is not discharged and the Purchaser's rights against the
Guarantors are not affected by any of the following:
(a) the granting of any indulgence or extension of time by the
Purchaser to the Company or to the Guarantors;
(b) the Purchaser's neglect or failure to enforce any covenants under
the Documents against the Company or waiver of any breaches or
defaults under the Documents;
(c) the entry into any arrangement, composition or compromise
relating to the Documents between the Purchaser and the Company
or any other person;
(d) the variation of any provision of the Documents between the
Purchaser and the Company without the Guarantors' consent but
only if they are minor and are not prejudicial to the Guarantors;
(e) the death or bankruptcy or winding up of the Company or any one
of the Guarantors;
(f) the Company's liability under the Documents, being or becoming
invalid, illegal, or unenforceable, including through any act,
omission or legislation;
(g) the disclaimer of the Documents following the Company's
insolvency.
8. (a) Until the Purchaser's claims against the Company and against the
Guarantors have been fully satisfied, the Guarantors will hold on
trust for the Purchaser any money received by the Guarantors
under any arrangement, composition, assignment, liquidation or
bankruptcy of the Company.
9. (a) The Guarantors agree to indemnify and keep indemnified the
Purchaser in respect of all losses, damages or costs incurred or
suffered by the Purchaser through the Company's breach or
repudiation of any of the Obligations.
(b) This indemnity:-
(i) Is in addition to and distinct from the Guarantors' liability
under the Guarantee;
5
5
(ii) enures in favour of the Purchaser's successors and assigns;
(iii) imposes on each of the Guarantors, if more than one, joint
and several liability;
(iv) continues throughout the period of continuance of this
Guarantee;
(v) extends to losses or damages incurred or suffered by the
Purchaser through inability to enforce the Obligations or
the Guarantee by reason of either of them being or becoming
wholly or partly unenforceable;
(vi) extends to the making of payments or the performance or
obligations under the Documents which are subsequently or
prospectively rendered void, illegal or are avoided as a
consequence of the bankruptcy or winding-up of the Company
or the disclaimer of the Documents, as if none of those
events shall have occurred.
10. Notwithstanding any other term of this Deed, the parties agree that in
the absence of fraud on the part of the Company or the Guarantors then:
(a) The Guarantors will only be liable to the Purchaser under this
Deed if the Guarantors receive written notice of the Purchaser's
claim against the Guarantors within three years from the date of
this Deed; and
(b) the maximum aggregate liability of the Guarantors shall not
exceed the Total Consideration and for the purpose of determining
the amount of the Total Consideration any stock transferred to
the Vendor or the Agent shall have ascribed to it the same value
as ascribed to it under the agreement by which the Stock was
transferred at the time the Vendor or the Agent became entitled
to receive the stock.
6
6
EXECUTED AS A DEED
THE COMMON SEAL of
FUNCTIONAL SOFTWARE
PTY LIMITED was hereunto
affixed in accordance with its Articles
of Association in the presence of: ............................
Director
..................................
Director/Secretary
THE COMMON SEAL of
SENTO AUSTRALIA PTY LIMITED
was hereunto affixed in
accordance with its Articles of Association
in the presence of: ............................
Director
..................................
Director/Secretary
SIGNED SEALED AND DELIVERED
by the said XXXXXXX XXXXX XXXXX
in the presence of: ............................
..................................
Witness
SIGNED SEALED AND DELIVERED
by the said XXXX XXXXXX MAIN in the
presence of: ............................
..................................
Witness
EXECUTED BY SENTO CORPORATION
