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EXHIBIT 2.4
DATED 1997
Between
XXXXXXX COMPUTERS PTY LIMITED
And
XXXXXXX COMPUTERS PTY LIMITED AS TRUSTEE FOR
THE XXXXXXX COMPUTERS UNIT TRUST
And
COLIN XXXXX XXXXXXX
And
DIVERGENT TECHNOLOGIES PTY LIMITED
CONFIDENTIALITY AGREEMENT AND RESTRAINT OF TRADE
XXXXXXX XXXXX & CO
Solicitors & Attorneys
Xxxxx 0, 00-00 Xxxx Xxxxxx
XXXXXX XXX 0000
DX: 000 XXXXXX
Ref: DZ\D1149
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THIS AGREEMENT is made on the day of March 1997
BETWEEN
XXXXXXX COMPUTERS PTY LIMITED ACN 008 004 331 of 00 Xxxxxx Xxxxxx in the
State of South Australia of the first part, hereinafter called ("the Owner")
AND
XXXXXXX COMPUTERS PTY LIMITED ACN 008 004 331 of 00 Xxxxxx Xxxxxx, Xxxxx
Xxxxxx in the State of South Australia aforementioned in its capacity as trustee
for the Xxxxxxx Computers Unit Trust ("the Trust").
AND
COLIN XXXXX XXXXXXX of 00 Xxxxxxx Xxxxxx, Xxxxx Xxxxxx in the State of South
Australia of the second part, hereinafter called ("Xxxxxxx")
AND
DIVERGENT TECHNOLOGIES PTY LIMITED ACN 003 908 325 of Xxxxx 0, 00 Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx in the State of New South Wales of the third part,
hereinafter called ("Divergent")
RECITALS
A. By Agreement dated 27 March 1997 Divergent is to engage Xxxxxxx as a
consultant in Divergent's business.
B. The Owner, the Trust and Xxxxxxx have agreed to enter into a
confidentiality agreement so as to protect Divergent's confidential
information including but not limited to all confidential information
relating to the computer software system known as CRMS as well as all
confidential information as hereinafter defined relating to the business of
the Owner hereby sold to the Purchaser ("the Owner and the Trust's
confidential information").
NOW THIS AGREEMENT witnesseth as follows:
1. Scope of the Agreement
1.1 The Owner, the Trust and Xxxxxxx agree to preserve and maintain in
confidence Divergent's confidential information which shall include the
Owner and the Trust's confidential information.
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2. Confidential information
2.1 Except to the extent such information is public knowledge or becomes public
knowledge other than by breach of this agreement, "confidential
information" shall mean for the purposes of this agreement:
2.1.1 information or material proprietary to Divergent and the Owner
and the Trust;
2.1.2 information reasonably designated as confidential by Divergent
and the Owner and the Trust;
2.1.3 information acquired by Xxxxxxx by virtue of provision of his
services;
2.1.4 trade secrets of Divergent and the Owner and the Trust;
2.1.5 customer list of Divergent and the Owner
2.1.6 information imparted in confidence to Xxxxxxx by Divergent; and
2.1.7 any other information classifiable in equity as confidential
information.
2.2 Without limiting the foregoing, "confidential information" shall include
but not be limited to source codes, object codes, user manuals, programming
manuals, modification manuals, flow charts, drawings, software listings,
models, drafts, diagrams and customer lists of Divergent.
2.3 The term "confidential information" extends to all forms of storage of
representation of the information referred to in sub-clauses 2.1 and 2.2
including, but not limited to, loose notes, diaries, memoranda, drawings,
photographs, electronic storage and computer printouts.
3. Intellectual property rights
3.1 All intellectual and industrial property rights derived from the
Confidential Information, whether arising prior to or in the course of or
subsequent to completion of the provision of services by Xxxxxxx shall
immediately be assigned to and vest in Divergent. To remove doubt, but
without limiting the generality of the preceding sentence, neither the
Owner, the Trust nor Xxxxxxx shall retain any copyright or other
intellectual property rights in the Confidential Information.
3.2 The Owner, the Trust and Xxxxxxx shall execute all documents and do all
acts and things reasonably required by Divergent for the purpose of giving
effect to clause 3.1.
4. Return of materials
4.1 Xxxxxxx shall return the materials referred to in clause 2.2 immediately
upon:
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4.1.1 termination of the agreement between Divergent and Xxxxxxx for
the provision of consultancy services;
4.1.2 completion by Xxxxxxx of the provision of the services;
4.1.3 demand by Divergent.
4.2 Without limiting the foregoing, Xxxxxxx undertakes that upon termination of
the consultancy services he shall immediately hand over to Divergent, and
shall not retain or remove from the premises where the services were
performed, any record, representation or reproduction (written, electronic,
photographic or otherwise) of the confidential information.
5. Survival of agreement
5.1 Xxxxxxx acknowledges and agrees that the undertakings given in relation to
the confidential information shall survive the termination of the
consultancy services and shall continue in force until such time as the
confidential information becomes public knowledge other than by breach of
this agreement.
5.2 Xxxxxxx acknowledges that information will not be deemed to be public
knowledge solely by virtue of the fact that it is embraced by more general
information which may have become public knowledge.
6. Covenant
6.1 Xxxxxxx acknowledges that the business of Divergent may be substantially
damaged in the event of a breach by Xxxxxxx of this agreement. In order to
prevent such damage arising, Xxxxxxx undertakes not to engage, for a period
of three (3) years from the termination of the consultancy services,
directly or through any other entity which competes with Divergent.
6.1.1 in any form of employment, consultancy, partnership or like
business arrangement with any competitor of Divergent operating
within the Commonwealth of Australia where Divergent trades;
6.1.2 in the supply of goods or services to any customer of Divergent
in Australia in circumstances where:
6.1.2.1 the identity of the customer or potential customer was
ascertained by Xxxxxxx in the course of the provision by Xxxxxxx
of the services to Divergent; and
6.1..2.2 the goods or services which Xxxxxxx'x seeks to so supply
compete with goods or services which might otherwise be supplied
by Divergent.
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7. Successors and assigns
7.1 This agreement shall be binding upon the Owner, Trust and Xxxxxxx'x
successors and assigns and legal personal representatives and shall enure
to the benefit of Divergent, its successors and assigns.
8. Headings
8.1 Headings used in this agreement are for convenience and ease of reference
only, are not part of this agreement and shall not be relevant to or affect
the meaning or interpretation of this agreement.
9. Severability
9.1 If any provision of this agreement is held invalid, unenforceable or
illegal for any reason, this agreement shall remain otherwise in full force
apart from such provision which shall be deemed deleted.
10. Governing law
10.1 This agreement shall be governed by and construed according to the laws of
the State of New South Wales.
11. Execution
11.1 This agreement may be executed in counterparts by the respective parties,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties have executed this Agreement the day of
1997
THE COMMON SEAL of )
XXXXXXX COMPUTERS PTY LTD )
was affixed in accordance with )
its Articles of Association in the )
presence of: )
/s/Xxxxx Xxxxxxx /s/Bronte Xxxxxxx
Director Secretary
Xxxxx Xxxxxxx Bronte Xxxx Xxxxxxx
Print name Print Name
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THE COMMON SEAL of )
XXXXXXX COMPUTERS PTY LTD )
as trustee for the Xxxxxxx Computers )
Unit Trust was affixed in accordance )
with its Articles of Association in the )
presence of: )
/s/Xxxxx Xxxxxxx /s/Bronte Xxxxxxx
Director Secretary
Xxxxx Xxxxxxx Bronte Xxxxxxx
Print name Print Name
SIGNED SEALED AND DELIVERED )
by the said COLIN XXXXX XXXXXXX )
in the presence of: ) /s/Xxxxx Xxxxxxx
/s/Bronte Xxxxxxx
Witness
Bronte Xxxxxxx
Print Name
THE COMMON SEAL of DIVERGENT )
TECHNOLOGIES PTY LIMITED )
was affixed in accordance with its )
Articles of Association in the presence of:)
/s/Xxxx Xxxxxxxxxxxx /s/Xxxxx Xxxxx
Director Director
Xxxx Xxxxxxxxxxxx Xxxxx Xxxxx
Print name Print Name
