EXECUTION COPY
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is entered into as of July ___,
1997, by and between Sento Technical Innovations Corporation, a Utah corporation
("Sento"), and Eng X. Xxx, an individual ("Xxx").
RECITALS
WHEREAS, pursuant to that certain Intellectual Property Purchase Agreement
dated as of July ___, 1997, among Sento, Australian Software Innovations
(Services) Pty. Ltd. ("ASI"), Kilat Holdings Pty. Limited ("Kilat"), Xxx and
Xxxx Xxx (together with Xxx, the "Shareholders") and that certain Asset Purchase
Agreement dated as of July ___, 1997, among Sento, Centerpost Innovations Pty.
Ltd. ("Centerpost"), ASI, Kilat and the Shareholders, Sento will acquire certain
assets of ASI (the "ASI Assets"); and
WHEREAS, Xxx is the managing director of ASI and the Shareholders are the
beneficial owners of 100% of the issued and outstanding capital stock of ASI;
and
WHEREAS, pursuant to that certain Asset Purchase and Services Agreement
dated as of June 30, 1997, among Sento, BMC Software, Inc. and BMC Software
(Cayman) LDC or its assignee (collectively, "BMC"), certain shareholders of
Sento, ASI and Xxx, Sento will sell the ASI Assets to BMC; and
WHEREAS, in order to facilitate the transition of the ASI Assets from Sento
to BMC, Sento desires to engage Xxx 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 Xxx hereby agree as
follows:
1. SERVICES. Sento hereby engages Xxx to provide consulting services to
Sento during the Term (as defined below), as an independent contractor, in order
to facilitate the transfer of the ASI Assets from Sento to BMC, and Xxx 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
five-month anniversary thereof, unless earlier terminated as permitted herein.
3. CONSIDERATION.
(a) On the Commencement Date, Sento will advance to Xxx the sum of
Five Hundred Thousand U.S. Dollars (the "Consulting Advance"). Xxx shall issue
to Sento on the Commencement Date a promissory note (the "Note") for repayment
of the Consulting Advance in the form of Exhibit A attached hereto and
incorporated herein by this reference.
(b) Commencing with the first monthly anniversary of the date of this
Agreement and continuing for each of the next four monthly anniversaries
thereafter during the Term, Sento shall make payments to Xxx as consulting fees
for services hereunder in the amount of One Hundred Thousand U.S. Dollars
($100,000) each.
4. TERMINATION. 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. If Sento terminates this
Agreement pursuant to this Section 4, then all sums due under the Note at the
time of such termination shall then be due and payable to Sento.
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 Xxx: Eng Xxx
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 (II) 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 Xxx shall not operate or be construed as a waiver
of any subsequent breach by Xxx.
(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.
[REMAINDER OF PAGE INTENTIONALLY BLANK -- SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Sento and Xxx have duly executed and delivered this
Agreement as of the date first written above.
"SENTO":
Sento Technical Innovations Corporation
By: ________________________________________________
Its: ________________________________________________
"XXX": _______________________________________________
Eng X. Xxx, individually
Exhibit A
to
Consulting Agreement
FORM OF NOTE
[Attached]
EXECUTION COPY
PROMISSORY NOTE
$500,000.00 July ___, 0000
Xxxx Xxxx Xxxx, Xxxx
FOR VALUE RECEIVED, Eng X. Xxx, an individual (the "BORROWER"), promises
and agrees to pay to the order of Sento Technical Innovations Corporation, a
Utah corporation, or order (the "LENDER"), at 000 Xxxxx Xxxxx Xxxxxx, Xxxx, Xxxx
00000, or at such other place as the holder hereof may designate in writing, in
lawful money of the United States of America, the principal sum of Five Hundred
Thousand and no/100 Unites States Dollars, according to the terms and conditions
set forth in this Note.
1. Borrower shall make payments on the outstanding principal balance of
this Note in the monthly amounts of $100,000 each, commencing on August ___,
1997, and continuing until December ___, 1997 (the "Maturity Date").
Notwithstanding the foregoing, Lender agrees that during the term of a
Consulting Agreement entered into by and between Lender and Borrower as of July
___, 1997 (the "CONSULTING AGREEMENT"), the obligation of Borrower to make
payments required under this Note shall be offset against the obligation of
Lender to pay to Borrower the monthly consulting payments required pursuant to
the terms of the Consulting Agreement. All indebtness evidenced by this Note
which remains outstanding on the Maturity Date shall be due and payable in full
thereon.
2. Borrower may prepay the principal amount of this Note, in whole or in
part, at any time without penalty or premium for any such early payment.
3. If any payment required by this Note is not made when due, or if any
other event occurs or circumstance exists which under any instrument evidencing
or securing the obligations evidenced by this Note entitles the holder hereof to
accelerate the maturity of such obligations, the entire unpaid principal balance
and accrued but unpaid interest hereunder shall, at the option of the holder
hereof, at once become due and payable without notice (time being the essence
hereof). Failure to exercise such option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default, event or
circumstance giving rise to such right of acceleration.
4. Prior to the Maturity Date, no interest shall be due or payable by
Borrower on amounts outstanding hereunder. All past due principal (whether by
acceleration or in due course) and, if permitted by applicable law, past due
interest, shall, both before and after judgment, bear interest at the rate of
twenty percent (20%) per annum.
5. Borrower agrees to pay the holder hereof a "late charge" equal to five
percent (5%) of any payment due pursuant to this Note which is more than fifteen
(15) days in arrears.
6. In the event that any payment under this Note is not made at the time
and in the manner required (whether before or after maturity), Borrower agrees
to pay, in addition to any late charge required by Section 5 above, any and all
costs and expenses (regardless of the particular nature thereof and whether
incurred before or after the initiation of suit or before or after judgment)
which may be incurred by the holder hereof in connection with the enforcement of
any of its rights under this Note, including, but not limited to, attorneys'
fees and all costs and expenses of collection.
7. Borrower and all sureties, guarantors and endorsers hereof waive
presentment for payment, demand and notice of dishonor and nonpayment of this
Note, and consent to any and all extensions of time, renewals, waivers, or
modifications that may be granted by the holder hereof with respect to the
payment or other provisions of this Note, and to the release of any security, or
any part thereof, with or without substitution.
8. Notwithstanding any other provision contained in this Note or in any
instrument given to evidence or secure the obligations evidenced hereby: (i)
the rates of interest and charges provided for herein and therein shall in no
event exceed the rates and charges which result in interest being charged at a
rate equalling the maximum allowed by law; and (ii) if, for any reason
whatsoever, the holder hereof ever receives as interest in connection with the
transaction of which this Note is a part an amount which would result in
interest being charged at a rate exceeding the maximum allowed by law, such
amount or portion thereof as would otherwise be excessive interest shall
automatically be applied toward reduction of the unpaid principal balance then
outstanding hereunder and not toward payment of interest.
9. This Note is delivered in the State of Utah and shall be governed by
and construed in accordance with the laws of said State, without giving effect
to any conflict of laws provisions. Each of Borrower and the Lender expressly
submits itself to the exclusive, personal jurisdiction of the federal and state
courts situated in Salt Lake City, Utah. This Note shall bind the successors
and assigns of Borrower and shall inure to the successors and assigns of the
Lender.
IN WITNESS WHEREOF, Borrower has executed this Note as of the day and
year first above written.
"Borrower":
__________________________________________________
Eng X. Xxx, individually