DEED OF RESTRAINT OF TRADE
THIS DEED OF RESTRAINT OF TRADE (the "DEED") is entered into in Orem, Utah,
effective as of the ____ day of July, 1997, by Australian Software Innovations
(Services) Pty. Ltd. ACN 000-000-000, a limited company organized under the laws
of Australia (the "SELLER"), Kilat Holdings Pty. Limited ACN 000-000-000, a
limited company organized under the laws of Australia ("KILAT"), and Eng Xxx and
Xxxx Xxx (collectively, the "SHAREHOLDERS"), individually, in favor of, and for
the benefit of, Sento Technical Innovations Corporation, Utah corporation (the
"BUYER").
RECITALS
A. Pursuant to an Option Agreement (the "OPTION AGREEMENT") dated as of
the 10th day of September, 1996 between Buyer, Seller, Kilat and the
Shareholders, Seller granted to Buyer and its nominee Centerpost Innovations
Pty. Ltd. ACN 000-000-000 ("CENTERPOST") an option (the "OPTION") to purchase
substantially all of the assets of Seller (the "ASSETS"), and Kilat and the
Shareholders agreed to facilitate Buyer s purchase of the Assets.
B. Eng Xxx is the Managing Director of Seller, Kilat owns all of the
issued and outstanding shares of the capital stock of Seller and the
Shareholders own all of the issued and outstanding shares of the capital stock
of Kilat.
C. Buyer and Centerpost have elected to exercise the Option with respect
to the Assets.
D. Pursuant to the terms of the Option Agreement, Buyer and Centerpost
have entered into an Asset Purchase Agreement (the "ASSET PURCHASE AGREEMENT")
and Buyer has entered into an Intellectual Property Purchase Agreement (the
"INTELLECTUAL PROPERTY PURCHASE AGREEMENT"), both dated as of the date hereof,
with Seller, Kilat and the Shareholders.
E. Pursuant to the terms of the Option Agreement, Seller, Kilat and the
Shareholders have agreed to enter into, and undertake the covenants and
obligations set forth in, this Deed.
WITNESSETH
NOW THIS DEED WITNESSES, in consideration of the respective
representations, warranties and covenants contained herein and for other good
and valuable consideration, the receipt, adequacy and legal sufficiency of which
are hereby acknowledged, Buyer, Seller, Kilat and the Shareholders agree as
follows:
1. PAYMENT. In consideration of the payment of the aggregate amount of
Seventy Eight Thousand United States Dollars ($78,000), receipt of which is
hereby acknowledged by each of Seller, Kilat and the Shareholders, Seller, Kilat
and the Shareholders hereby agree to undertake and be bound by each of the
covenants and obligations set forth in this Deed.
2. COVENANTS. Each of Seller, Kilat and the Shareholders acknowledges
the receipt of valuable consideration from Buyer in the form of the payment
described in SECTION 1 above, as well as the covenants and obligations of Buyer
set forth in the Asset Purchase Agreement and the Intellectual Property Purchase
Agreement, as well as all other documents and agreements contemplated thereby
(collectively, the "ACQUISITION DOCUMENTS"). In consideration of that valuable
consideration and to protect the goodwill associated with the Assets, each of
Seller, Kilat and the Shareholders covenants and agrees, for themselves and
their respective Affiliates (as defined below), to be bound by the following
restrictions:
(a) Commencing on the date of this Deed and continuing:
(i) for a period of twelve (12) months; and
(ii) for a period of twelve (12) months from the first
anniversary of the date of this Deed; and
(iii) for a period of twelve (12) months from the second
anniversary of the date of this Deed:
none of them will be engaged or involved in any capacity in any business or
activity in the Commonwealth of Australia or elsewhere which is the same as
or similar to the business of Buyer, as successor to Seller in relation to
the Assets; PROVIDED, HOWEVER, that the foregoing covenant shall not limit
the ability of Seller or Eng Xxx ("XXX"), one of the Shareholders, to
provide the services expressly required under the terms of an Asset
Purchase and Services Agreement dated June 30, 1997 among BMC Software,
Inc., BMC Software (Cayman) LDC, Buyer, ASI and Xxx.
(b) If any of the prohibitions or restrictions contained in this Deed
is judged by any court to go beyond what is reasonable in the
circumstances, but would be reasonable and necessary if any activity were
deleted or a period or area were reduced, then the prohibitions or
restrictions will apply with that activity deleted or period or area
reduced by the minimum amount determined necessary by the relevant court.
(c) Each of the prohibitions and restrictions in this Deed has effect
as a separate and several prohibition or restriction and is to be enforced
accordingly.
(d) Notwithstanding any of the other provisions of this Deed, Seller,
Kilat, the Shareholders and their respective Affiliates may hold in the
aggregate up to, but not more than, ten percent (10%) of the capital stock
of a public company, the shares of which are quoted on the Australian Stock
Exchange Limited, even though that company carried on any of the activities
referred to in this clause.
(e) Seller, Kilat and the Shareholders each acknowledge that all the
prohibitions and restrictions contained in this Deed are reasonable in
these circumstances and warrant that:
(i) they have received independent legal advice with respect to
this Deed;
(ii) they consider such prohibitions and restrictions to go no
further than reasonably necessary to protect the goodwill associated
with the Assets; and
(iii) damages would not be an adequate remedy to protect the
goodwill associated with the Assets.
(f) For purposes of this Deed, the term Affiliate shall mean, with
respect to any specified person or entity, each other person or entity
which, directly or indirectly, controls, is controlled by or is under
common control with such specified person or entity (whether a general or
limited partner), each officer, director or general partner of such
specified entity, and each other person or entity who is the beneficial
owner of five percent (5%) or more of any class of the voting securities of
such specified entity or five percent (5%) or more in market value of the
outstanding securities of such entity. For purposes of this definition,
"control" means the possession of the power to direct or cause the
direction of all or any part of the management and policies of a specified
person or entity, whether through the ownership of voting securities, by
contract or otherwise.
(g) For purposes of this Deed, the term "engaged or involved in"
includes direct or indirect involvement as a principal, agent, partner,
employee, shareholder, member, unitholder, director, trustee, beneficiary,
manager, consultant, adviser or financier.
3. EXECUTION. This Deed is executed contemporaneously with the
Acquisition Documents, dated as of the date hereof, by and among Buyer,
Centerpost, Seller, Kilat and the Shareholders and is subject to the terms and
conditions set forth therein. In the event the Asset Purchase Agreement and the
Intellectual Property Purchase Agreement are not executed by each of Buyer,
Centerpost (with respect to the Asset Purchase Agreement only), Seller, Kilat
and the Shareholders, this Deed shall be of no force or effect.
[REMAINDER OF PAGE INTENTIONALLY BLANK -- SIGNATURE PAGE FOLLOWS]
EXECUTED AS A DEED, as of the date first above written.
"SELLER":
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
"KILAT":
THE COMMON SEAL of KILAT HOLDINGS PTY.
LIMITED 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
"SHAREHOLDERS":
_________________________ ______________________________
Eng Xxx, individually Xxxx Xxx, individually
SIGNED, SEALED AND DELIVERED BY THE SAID ENG XXX AND XXXX XXX IN THE PRESENCE
OF:
