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EXHIBIT 2.2
BETWEEN
FUNCTIONAL SOFTWARE PTY LIMITED
of the one part
AND
SENTO AUSTRALIA PTY LIMITED
of the other part
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BUSINESS ASSETS AGREEMENT
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Associates
LAWYERS
▇▇▇▇▇ ▇▇, ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
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Telephone: ▇▇ ▇▇▇▇ ▇▇▇▇ Facsimile: 02 9221 8364 DX: ▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇ Ref: 985122
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THIS DEED dated September 30, 1998
BETWEEN: FUNCTIONAL SOFTWARE PTY LIMITED (A.C.N. 009 421 194) of ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ in the State of Western Australia (hereinafter
called "the Vendor") of the one part
AND: SENTO AUSTRALIA PTY LIMITED (A.C.N. 074 678 774) (formerly known as
Australian Software Innovations Services Pty Limited) of ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ in the State of New South Wales ("the
Purchaser") of the other part
WHEREAS:
A. The Vendor is the proprietor of a software house business known as
"Functional Software" whose principal place of business is located at
Suite 7, ▇▇▇▇▇▇ Court, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ in the State of
Western Australia.
B. The Purchaser has agreed to purchase and the Vendor has agreed to sell
certain assets of the business of the Vendor on the terms and conditions
contained in this agreement.
DEFINITIONS
1.1 In this Deed the following expressions have the following meanings:
(a) "Agreement" or "this Agreement" means this deed;
(b) "Agreements for Services" means the agreements of even date
between the Purchaser and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
Main for the provision of personal services to the Purchaser;
(c) "Assumed Contracts" means the contracts set out in Schedule Five;
(d) "Authority" means any Government or semi-Government body;
(e) "Business" means all of the computer software business trading
under the name of "Functional Software" including without
limitation the Business Assets and the Intellectual Property
Business Assets;
(f) "Business Assets" means all of the computer software business
owned by the Vendor including without limitation:-
(i) the goodwill of the Business;
(ii) all plant, fittings, chattels and fixtures and other
property used by the Vendor in connection with the
Business including the property listed in Schedule One
and the Vendor's interest in the Amended Contracts;
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(iii) all good and saleable stock in trade of the Business;
(iv) the Vendor's interest in the Distribution Agreements;
(v) the Vendor's interest in the Licence Agreements;
(vi) the Vendor's consultancy business;
(vii) all client lists, suppliers lists, data bases, records
information and other intellectual property of the Vendor
used in connection with the Business;
but shall exclude:-
(A) the Intellectual Property Business Assets;
(B) the Vendor's property listed in Schedule Seven;
(C) The Vendor's cash on hand;
(D) The Freeware;
(E) The consultancy agreement between the Vendor and
Wycombe Pty Limited (A.C.N. 009 297 983);
(g) "Business day" means any day which is not Saturday, Sunday or a
public holiday;
(h) "Claim" means, as against a person, any claim, notice, demand,
action, proceeding, litigation, investigation, requisition,
judgement, damage, loss, cost, expense or liability incurred or
suffered by or brought or made or recovered against the person
howsoever arising;
(i) "Communication Services" means any mode of communication used in
connection with the Business to communicate with clients and
includes without limitation the telephone, E-mail, facsimile and
web sites listed in Schedule Two.
(j) "Completion Date" means the date of completion of this agreement
which it is anticipated will be the same day as the making of
this agreement;
(k) "Consultant" means NorthPoint Software Ventures PTE Limited;
(l) "Consultancy Agreement" means the Agreement between the
Consultant and Sento US;
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(m) "Consultancy Fees" means fees payable by the customers of the
Vendor for software implementation, customisation, configuration
and project management;
(n) "Disclosure Statement" means the statement in Schedule Three of
the Intellectual Property Business Assets Agreement;
(o) "Distribution Agreements" means those agreements entered into by
the Vendor for the distribution of the Intellectual Property
Business Assets and for the distribution of other software
particularised in Schedule Three;
(p) "Freeware" means software and components of software which are
available at no cost or nominal cost specified in the Disclosure
Statement;
(q) "Guarantee" means the Deed of even date between the Vendor, the
Purchaser and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ Main whereby
▇▇▇▇▇ and Main guarantee the obligations of the Vendor;
(r) "Intellectual Property Business Assets" has the same meaning as
that term in the Intellectual Property Assets Agreement;
(s) "Intellectual Property Business Assets Agreement" means the
agreement of even date between Sento US and the Vendor for the
sale to Sento US by the Vendor of the Intellectual Property
Business Assets;
(t) "Lease" means the lease of office premises at ▇▇▇▇▇ ▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ dated 19 June, 1998
between ▇▇▇▇▇▇▇ Antonio Misiani and ▇▇▇▇▇▇▇▇ Misiani as Lessor
and the Vendor as Lessee;
(u) "Licence Agreements" means those agreements entered into by the
Vendor for the licence to end users and support and maintenance
of the Intellectual Property Business Assets;
(v) "Maintenance and Support" means software maintenance and support
services;
(w) "Non-Compete Deeds" means the four Deeds between the Vendor, the
Purchaser, Sento US, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ Main and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, whereby the Vendor, Main, ▇▇▇▇▇ and
Haythornthwaite agree not to compete against the Purchaser;
(x) "Other Transaction Documents" means the Agreements for Services,
the Intellectual Property Business Assets Agreement, the
Consultancy Agreement, the Guarantee, and the Non-Compete Deeds;
(y) "Purchase Order" means an order in writing placed with the
Business or a distributor for the procurement of a licence of an
Intellectual Property Asset and/or Maintenance and Support fees
or Consulting Services;
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(z) "Sento US" means Sento Corporation, a Utah Corporation;
(aa) "Stock" means unregistered shares of the common stock of SentoUS,
a Utah Corporation;
(bb) "Total Consideration" means the aggregate sum actually paid by
the Purchaser and Sento US to the Vendor or any other party to
the Other Transaction 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 Consultancy Agreement and the Non Compete
Deeds, but excludes any amount payable under the Agreements for
Services.
INTERPRETATION
1.2 (a) Words expressed in the singular include the plural and vice
versa.
(b) Words expressed in one gender include the other genders, as is
appropriate in the context.
(c) A reference to "person" includes a corporation.
(d) This Agreement is governed and construed in accordance with the
law of Western Australia.
(e) If any provision contained in this Agreement is or becomes
legally ineffective, under the general law or by force of
legislation, the ineffective provision shall be severed from this
Agreement which otherwise continues to be valid and operative.
(f) Two or more parties to this Agreement who represent the same
interest, as Vendor or Purchaser, assume the liability to comply
with their obligations under this Agreement jointly, and in
addition each of them assumes those obligations severally.
(g) If under the provisions of this Agreement or under any notice or
demand anything is required to be done on a day which is not a
Business day, the day or the last day for compliance is deemed to
be the immediately following Business day.
(h) Headings are for guidance only and shall not form part of this
Agreement.
(i) Reference to "$" or "Dollars" is reference to Australian dollars.
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2. SALE OF BUSINESS ASSETS
2.1 The Purchaser agrees to buy and the Vendor agrees to sell the Business
Assets in accordance with the terms and conditions of this Agreement.
2.2 The Business Assets are sold free from encumbrances, charges and liens
but are subject to the matters referred to in the Disclosure Statement.
2.3 Title to the Business Assets shall pass from the Vendor to the Purchaser
on the completion of this Agreement.
3. CONSIDERATION
3.1 On completion of this agreement, the Purchaser shall pay to the Vendor
in consideration of the sale of the Business Assets $292,950.00.
3.2 The parties agree the Consideration shall be apportioned on the Business
Assets as follows:-
(a) Goodwill - $172,950.00
(b) Plant, fixtures and fittings - $120,000.00
4. POSSESSION AND ADJUSTMENTS
4.1 The Vendor shall give possession of the Business Assets to the Purchaser
on completion of this Agreement.
4.2 The Vendor warrants that those items of plant, fittings and chattels
comprising the Business Assets are in a complete state of severance
except as otherwise indicated in the Schedule One.
4.3 The Vendor will remain in possession of the Business and will manage the
same as a going concern in a proper manner until completion of this
Agreement and shall sign and execute all documents and do all things
reasonably required for putting the Purchaser in possession and
enjoyment of the Business Assets and for performing this Agreement.
4.4 The Vendor agrees that pending completion the stock in trade of the
Business shall not be offered for sale or licence at prices less than
the prevailing prices or rates for such goods or otherwise than in the
normal course of business without the prior consent of the Purchaser.
The Vendor shall not between the date of this Agreement and completion
thereof dispose or part with possession of any of the Business Assets
without the prior written consent of the Purchaser.
4.5 The Vendor shall pay or bear all charges and amounts due for rent, gas,
electricity, telephone and other outgoings in respect of the Business up
to the date of completion on and from which date the Purchaser shall pay
or bear the
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same to the extent they relate to the Business Assets and
any necessary apportionment shall be made on completion.
4.6 The income of the Business shall be apportioned in accordance with
clauses 4.6 - 4.15
4.7 In respect of the licence fees payable in respect of the Licence
Agreements, OSM Agreements or the use of the Intellectual Property
Business Assets, if the Purchase Order is received before the date of
this Agreement, then any fees payable thereunder are the property of the
Vendor and if the Purchase Order is received after the date of this
Agreement, any fees payable thereunder are the property of the Purchaser
and otherwise there shall be no apportionment between the parties.
4.8 In respect of all Maintenance and Support fees received or payable
(including under the OSM Agreements) if such Maintenance and Support
Fees relate to a period commencing on or after 1 October, such
Maintenance and Support Fees shall be the property of the Purchaser.
4.9 In respect of Maintenance and Support Fees (but excluding Maintenance
and Support Fees payable under the OSM Agreements) which relate to a
period commencing before 1 October, 1998 and which have been both billed
and paid to the Vendor before 1 October, 1998, such maintenance and
support fees shall be the property of the Vendor and there will be no
apportionment between the parties.
4.10 In respect of Maintenance and Support Fees (but excluding Maintenance
and Support Fees payable under the OSM Agreements) which:-
(a) Relate to a period commencing before 1 October, 1998; and
(b) are unpaid
then a pro rata apportionment shall be made for the period for which the
Maintenance and Support Fees are payable over time as necessary and all
of the payment relating to the period up to and including 30 September,
1998 and half the amount relating to the period after 30 September, 1998
shall be paid to the Vendor and half the amount relating to the period
after 30 September, 1998 shall be paid to the Purchaser provided that no
amount shall be due to the Purchaser or the Vendor pursuant to this
clause 4.10 until the Maintenance and Support Fees have been paid.
4.11 In respect of Maintenance and Support Fees payable pursuant to the OSM
Agreements which:-
(a) are payable by OSM for the quarter ending 30 September, 1998; and
(b) Relate to a period commencing before 1 October, 1998;
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then a pro rata apportionment shall be made for the period for which the
Maintenance and Support Fees are payable over time as necessary and all
of the payment relating to the period up to and including 30 September,
1998 and half the amount relating to the period after 30 September, 1998
shall be paid to the Vendor and half the amount relating to the period
after 30 September, 1998 shall be paid to the Purchaser provided that no
amount shall be due to the Purchaser or the Vendor pursuant to this
clause 4.11 until the Maintenance and Support Fees have been paid by
OSM.
4.12 In respect of any Consultancy Fees payable to the Vendor, where the
Purchase Order is received before the date of this Agreement and work
has commenced before the date of this Agreement, but the work has not
been completed by the date of this Agreement, then the Consultancy Fees
are to be apportioned between the Vendor and Purchaser and the Vendor
shall receive that proportion of the particular Consultancy Fee being
the proportion that the value of work undertaken before the date of this
Agreement bears to the total value of the work for the particular
Consultancy Fee and the value of work shall be determined by the number
of hours recorded as expended on the particular matter at a chargeout
rate of the persons undertaking the work at the rate which normally
applies as at the date of completion of this Agreement. No amount shall
be due to the Vendor or the Purchaser pursuant to this clause 4.12 until
the Consultancy Fees have been paid.
4.13 The Purchaser shall promptly account to the Vendor for any income
received from the Business after the date of this Agreement which is the
property of the Vendor and the Vendor shall promptly account to the
Purchaser for any income received from the Business after the date of
this Agreement which is the property of the Purchaser. The Purchaser
shall:-
(a) Use its best endeavours to collect all fees due to the Business
(but shall not be required to commence recovery action);
(b) conduct the Business in a proper and businesslike manner,
including providing consultancy services and maintenance in
accordance with its contractual obligations.
4.14 The Purchaser acknowledges that the licence fees which are to be billed
and paid as particularised in Schedule Eight will, notwithstanding any
other term of this Agreement, remain the property of the Vendor. The
Purchaser agrees it will at the request of the Vendor issue accounts for
the Licence fees in respect of those matters set out in Schedule Eight
and will, on receipt of such funds, promptly account to the Vendor for
the monies so received.
4.15 In this clause 4 "OSM Agreements" means the Distribution Agreement
between the Vendor as Owner and Open Systems Management Inc. dated 14
October, 1997 and the Distribution Agreement between the Vendor as Owner
and Open Systems Management Limited dated 14 October, 1997.
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5. COMPLETION
5.1 Completion of this agreement shall take place immediately upon entering
this Agreement or on such other date as may be mutually agreed.
5.2 A party entitled to serve a notice to complete may serve a notice
requiring completion of this agreement on a day being not less than
fourteen (14) days after the date of service of the notice. The notice
is to be deemed both at law and in equity sufficient notice to make time
of the essence of this contract notwithstanding that the party serving
the notice has not made any previous request or demand for completion.
5.3 Completion of this agreement shall take place in Perth, Western
Australia.
6. STATE OF REPAIR AND RISK
6.1 The Business Assets shall be delivered to the Purchaser on the
Completion Date in the same state of repair as at the date of this
Agreement, fair wear and tear excepted, and where applicable in proper
working order unless specifically disclosed in this Agreement.
6.2 Until the Completion Date, the chattels and other assets comprising the
Business Assets shall be at the risk of the Vendor.
6.3 Until the Completion Date, the Vendor shall maintain the goodwill of the
Business and carry it on in a proper and business-like manner.
7. COMMUNICATION SERVICES
7.1 On completion, the Vendor will do such acts and sign such documents as
shall be necessary to enable the Purchaser to apply for and obtain the
Communication Services from completion.
7.2 The Vendor shall ensure that as at the date of completion all costs and
expenses incurred in respect of the Communication Services have been
paid. Any costs and expenses relating to a period beyond the Completion
Date shall be paid by the Purchaser, and if already paid by the Vendor
the parties shall make any necessary adjustment.
8. OTHER SERVICES
8.1 All other existing services to the Business shall, subject to the
consent of the suppliers, be made available for the Purchaser on
completion. The Vendor will do such acts and sign such documents to
enable the Purchaser to apply for and obtain the benefit of all or any
of such services provided the Vendor shall be at liberty to have any
deposits paid for such services refunded to it. Nothing in this
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clause shall obligate the Purchaser to take over any existing service
other than those services the subject of the Assumed Contracts.
9. TRANSFER OF BUSINESS NAMES AND TRADEMARK
9.1 The Vendor warrants that:-
(a) it has not registered any business names in connection with the
Business other than the name "Cosmos Open Systems Management";
(b) the Vendor is not aware of any claim against it by the registered
proprietor of any business name;
(c) it will on completion assign its interest in the business name
"Cosmos Open Systems Management" to the Purchaser and deliver to
the Purchaser a Notice of Assignment in the approved Form.
9.2 The Vendor warrants that:-
(a) It is the registered proprietor of or the applicant for the
trademarks as set out in Schedule Four;
(b) these are the only trademarks that have been registered or
applied for in connection with the Business;
(c) such trademarks that have been registered have been correctly
registered and such registration is current; and
(d) the Vendor is not aware of any Claim in respect of its
registration or use of the trademarks.
9.3 On or as soon as practicable after completion the Vendor will sign and
deliver to the Purchaser all necessary forms to effect an assignment of
its interest in the registered trademarks to the Vendor provided that
the Purchaser shall be liable for all costs and expenses necessary for
or incidental to giving effect to such assignment.
10. CHANGE OF NAME
10.1 The Vendor shall on or after completion upon the written request of the
Purchaser do such acts and sign such documents so as to cause the name
of the Vendor to be changed to a name that does not include the words
"Functional Software" or the acronym "FS" or any similar name.
10.2 The Vendor shall on or after completion sign such documents and do such
acts as the Purchaser shall require to consent to:-
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(a) the Purchaser or a company controlled by the Purchaser changing
its name to "Functional Software" or a name similar to Functional
Software on or after the completion date; and/or
(b) the Purchaser or its nominee registering as a business name the
name "Functional Software" or a name similar to Functional
Software on or after the completion date.
10.3 If within six months from the date of this Agreement Functional
Computing pty Limited has not been wound up the Vendor shall cause that
Company to change its name to a name that does not include the word
"Functional" or the acronym "FS" or any similar name.
10.4 If within six months from the date of this Agreement Functional Software
Asia Pacific PTE Limited and Functional Software (S) PTE Limited have
not been wound up then the Vendor shall cause such companies to change
their names to a name that does not include the words "Functional
Software" or the acronym "FS" or any similar name.
11. PURCHASER'S ASSUMPTION OF VENDOR'S LIABILITY
11.1 The Purchaser shall not be bound by any contract or agreement in respect
of the Business other than the Assumed Contracts, the Distribution
Agreements and the Licence Agreements, the Agreements for Services and
the Lease.
11.2 The Purchaser will not assume any debt, Claim, liability, tax, judgment
or obligation whatsoever of the Vendor except for those obligations
under the Assumed Contracts, the Distribution Agreements and the Licence
Agreements and the Lease.
11.3 The Vendor shall sign such documents and do such acts as shall be
necessary to ensure that the Purchaser takes over the burden and benefit
of the Assumed Contracts, the Distribution Agreements and the Licence
Agreements as and from the Completion Date.
11.4 The Purchaser shall on and from completion indemnify and keep
indemnified the Vendor in respect of all debts and liabilities arising
after completion under the Assumed Contracts, the Distribution
Agreements, the Lease and the Licence Agreements and will keep
indemnified the Vendor against all claims and proceedings in respect
thereof, unless such debt or liability arises from a breach by the
Vendor of this Agreement or a breach of any of the terms of the Other
Transaction Documents.
11.5 The Vendor warrants that as at the date of completion all costs and
expenses incurred and all obligations to be undertaken up to the
Completion Date in respect of the Assumed Contracts, the Distribution
Agreements and the Licence Agreements have been paid or undertaken.
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11.6 Any cost or expense in respect of an Assumed Contract relating to a
period beyond the completion date shall be apportioned as necessary.
11.7 With the exception of the Assumed Contracts and the Distribution
Agreements, the Vendor shall discharge all debts and liabilities which
have been incurred by and in connection with the Business Assets
(including hiring or hire purchase agreements) and which shall not have
been discharged at the time of completion of this Agreement and will
keep indemnified the Purchaser against all claims and proceedings in
respect thereof.
11.8 The Vendor warrants that it has done such acts and obtained such
consents as are required under the Distribution Agreements or any other
agreement to assign to the Purchaser the Vendor's interest under the
Distribution Agreements.
11.9 Subject to the terms of this Agreement and the Other Transaction
Documents, the Purchaser will indemnify the Vendor and keep the Vendor
indemnified against all Claims and proceedings in connection with the
Business Assets or in respect of the Purchaser's obligations arising
after the date of this Agreement under the Licence Agreements, the
Distribution Agreements and the Assumed Contracts.
12. INTERDEPENDENT AGREEMENTS
12.1 Completion of this Agreement is conditional upon the simultaneous
completion of the Other Transaction Documents.
13. RESTRAINT OF TRADE
13.1 On completion, the Vendor shall cause to be delivered to the Purchaser
the duly executed Non Compete Deeds.
14. EMPLOYEES
14.1 The Vendor warrants that its employees in connection with the Business
are accurately set out in the Schedule Six and that their length of
service and current terms of employment are accurately disclosed in the
Schedule.
14.2 The Vendor shall terminate the employment of each of their employees
with effect from the Completion Date and on completion (in accordance
with the requirements of the relevant legislation, award or agreement)
pay to each of such employees the respective amounts due to them as at
that date for wages, and subject to clause 14.5, holiday pay and long
service leave.
14.3 The Purchaser shall offer to re-employ all the employees of the Vendor
as at the Completion Date.
14.4 The Purchaser shall notify the Vendor in writing prior to completion the
names of employees that have agreed to be re-employed by the Purchaser.
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14.5 In respect of any employee whom the Purchaser proposes to re-employ in
accordance with clause 14.4, the Vendor shall on completion pay or allow
to the Purchaser an amount equal to 64% of the monetary value of the
annual leave and long service leave accrued by that employee as at the
Completion Date. There shall be no such payment or allowance in respect
of any such employees who refuse to be employed by the Purchaser. The
parties agree there shall be no adjustment between them for the monetary
value of the annual leave and long service leave accrued by the
employees as at the Completion Date
14.6 The Purchaser shall indemnify the Vendor against any claim by an
employee against the Vendor in respect of the long service leave or
holiday pay or its monetary value.
15. BUSINESS PREMISES
15.1 The Vendor shall on or as soon as practicable after completion obtain
the consent of the lessor under the Lease to a transfer of the Lease
from the Vendor to the Purchaser. The Purchaser shall pay the Lessor's
costs of and incidental to such consent and transfer. The Vendor
warrants that on completion there will not be any breach of the Lease by
the Vendor, that it will have received no notice from the lessor under
the Lease which has not been complied with and that the Lease will be
valid and subsisting.
15.2 In respect of the business premises at Suite 1802b, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ the Vendor shall maintain its lease of
those premises until completion. The Purchaser shall not be obligated to
take an assignment of the premises or continue in occupation of the
premises after completion.
15.3 In respect of the business premises at ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ the Vendor:-
(a) Warrants it occupies the premises as a monthly tenant and is not
in breach of the lease under which it occupies the premises;
(b) shall maintain its Lease of those premises until completion and
shall use its reasonable endeavours and do such acts and sign
such documents as shall be necessary to allow the Purchaser or
its nominee to commence in occupation of the premises as a month
to month tenant.
16. AGREEMENTS FOR SERVICES
16.1 The Vendor shall cause ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ Main to enter
and perform the Agreements for Services.
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17. NOTICES
17.1 The Vendor warrants it is not aware of any notice affecting or relating
to the Business issued by any competent Authority on or before the date
of this Agreement.
17.2 Prior to completion, the Vendor will comply with any statutory
requirement existing at the date of this Agreement in relation to the
Business.
18. CAPACITY OF PURCHASER
18.1 The Purchaser warrants:-
(a) It has the unrestricted right, power, authority and capacity to
enter into and complete this Agreement and to perform its
obligations under this Agreement;
(b) it is a proprietary limited company duly organised, validly
existing and in good standing under the Corporations Law and has
full power and authority to carry on its business now being
conducted, to own and operate its properties and assets and to
perform its obligations under this Agreement; and
(c) the entering into or completion of this Agreement will not, as at
the date of completion, conflict or violate with any provisions
of its Memorandum and Articles of Association.
19. CAPACITY OF VENDOR
19.1 The Vendor warrants:-
(a) It has the unrestricted right, power, authority and capacity to
enter into and complete this Agreement and to perform its
obligations under this Agreement;
(b) it is a proprietary limited company duly organised, validly
existing and in good standing under the Corporations Law and has
full power and authority to carry on its business now being
conducted, to own and operate its properties and assets and to
perform its obligations under this Agreement; and
(c) the entering into or completion of this Agreement will not, as at
the date of completion, conflict or violate with any provisions
of its Memorandum and Articles of Association.
(d) Except as specifically disclosed in this Agreement or any Other
Transaction Document or in the Disclosure Statement, to the best
of the knowledge of the Vendor, the Vendor is not a party to or
subject to any
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proceedings of a Court or Arbitrator involving,
affecting or relating to the ownership or actual use of the
Business and there are no proceedings pending or threatened
against, involving, effecting or relating to the Vendor or the
Business and, to the best knowledge of the Vendor, there exists
no facts to serve as a basis for the institution of any
proceedings or any Claim which would adversely affect the
Business.
(e) The Vendor has lodged, or will prior to completion lodge, all tax
returns required by law to be lodged on or before completion
whether in Australia or any other jurisdiction and all such
returns have been fully and accurately completed and a full and
true disclosure of all material facts has been made to the
appropriate revenue authority. The Vendor warrants that there is
no unresolved dispute with any authority in relation to the
assessment or payment of taxation. The Vendor further warrants
that all taxes which have been assessed or imposed which are due
and payable prior to completion will have been paid prior to
completion.
(f) There is no agreement, arrangement or activity whether by
commission or omission in which the Vendor has been knowingly
concerned which infringes or has been or which is required to be
authorised under Part (IV) of the Trade Practices Act, 1974 or
any anti-trust legislation in relation to the Business.
(g) Except as specifically disclosed in this Agreement or any Other
Transaction Document or in the Disclosure Statement the Vendor is
the beneficial owner of the Business Assets and none of the
Business Assets are subject to any trust.
20. AGENT
20.1 The Vendor warrants that no person acting as agent or broker or
investment banker has acted directly or indirectly on behalf of the
Vendor in connection with the sale of the Business and to the best
knowledge of the Vendor no person will be entitled to any fee in the
nature of commission in respect of the sale of the Business.
21. DISCLOSURE TO PURCHASER
21.1 Prior to the entering of this Agreement the books of account and other
material business records of the Vendor regarding the Business Assets
have all been made available to the Purchaser and to the best knowledge
of the Vendor such books and records are materially complete and correct
records of the Business.
21.2 Prior to the date of this Agreement, to the best knowledge of the
Vendor, the Vendor has made available to the Purchaser true, correct and
complete copies of all material contracts, agreements, leases and
commitments relating to or affecting the Business.
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21.3 To the best knowledge of the Vendor, no representations or warranties of
the Vendor contained in this Agreement or in any of the books and
records and other documents of the Vendor produced to the Purchaser
contain any untrue statement of material fact, nor has the Vendor
omitted to disclose any material fact to the Vendor in relation to the
operation and nature of the Business. There is no fact known to the
Vendor which has specific application to the Vendor or the Business
(other than general economic or industry conditions) and which would
materially and adversely affect the Business or the ability of the
Vendor to carry out its obligations under this Agreement other than as
set out in the Disclosure Statement.
22. MATERIAL CHANGE PRIOR TO COMPLETION
22.1 The Vendor warrants to the Purchaser:-
(a) that the representations and warranties made in this Agreement
are true, correct and complete as at the date of this Agreement
and will be true, correct and complete as at the date of
completion of this Agreement;
(b) there is no dispute or any other occurrence, event or condition
known to the Vendor (other than general economic or industry
conditions) as at the date of this Agreement which could
reasonably be anticipated to give rise to any legal or
administrative action or to a material adverse change affecting
the Business Assets or the Business or the Vendor's ability to
carry out its obligations under this Agreement.
23. SPECIFIC WARRANTIES OF VENDOR
23.1 Except as otherwise expressly disclosed in this Agreement or in the
Disclosure Statement, the Vendor warrants to the Purchaser that the
following representations and warranties are true, correct and complete
as at the date of this Agreement and will be true, correct and complete
as at the Completion Date of this Agreement:-
(a) There is no asset, right, interest, property or agreement of any
nature whatsoever in connection with the Business which is not
owned by the Vendor;
(b) none of the Business Assets are subject to any encumbrance;
(c) as far as the Vendor is aware, none of the Business Assets are
subject to any Claim;
(d) all wages, tax and other obligations due and payable by the
Vendor to its Employees have been paid or met;
(e) as far as the Vendor is aware, no Employee or former employee has
any Claim against the Vendor;
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23.2 Except as otherwise disclosed in this Agreement or in the Disclosure
Statement, the entering of this Agreement by the Vendor will not
conflict with or be a breach of or a default under the terms of any
contract, agreement, pledge or instrument including, without limitation,
the Assumed Contracts and the Distribution Agreements.
23.3 In respect of the Assumed Contracts a complete and accurate copy,
including all amendments, have been delivered to the Purchaser.
23.4 In respect of the Distribution Agreements, a complete and accurate copy
including all amendments, of the Distribution Agreements have been
delivered to the Purchaser.
23.5 Except as otherwise disclosed in this Agreement or in the Disclosure
Statement, there are no other contracts or agreements affecting the
Business Assets other the Assumed Contracts and the Distribution
Agreements.
23.6 The Vendor warrants that none of the Business Assets infringe any
copyright of any third party.
23.7 To the best of the Vendor's knowledge, the Vendor warrants that all the
Licence Agreements and all licence agreements granted pursuant to the
Distribution Agreements have been entered into in the ordinary course of
business and that none of the Licence Agreements and all licence
agreements granted pursuant to the Distribution Agreements other than
the Licence Agreements specified in Schedule Nine require the release or
holding in escrow of any of the source codes of the software comprising
the Intellectual Property Business Assets or contain any terms and
conditions which are materially different to the terms and conditions
ordinarily offered by the Vendor for the licence of its Software.
23.8 Despite any other provision of this Agreement, every warranty, condition
and obligation on the Vendor is subject to the Disclosure Statement.
24. VENDOR'S INDEMNITY AND LIMITATION ON LIABILITY
24.1 The Vendor agrees to indemnify the Purchaser from and against any Claim
against the Purchaser, before or after completion of this Agreement, to
the extent that the Claim arises directly from the breach of any
warranty, representation or obligation on the part of the Vendor under
this Agreement.
24.2 Despite any other provision of either this Agreement or any Other
Transaction Document, the Vendor will only be liable to the Purchaser
for a breach of any warranty, representation or obligation on the part
of the Vendor under this Agreement or any Other Transaction Document or
liable in tort (including but not limited to negligence), under statute
or on any other basis in connection with this Agreement or any Other
Transaction Document if the Vendor receives written
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notice of the Purchaser's claim against the Vendor within three years
of the date of completion of this Agreement.
24.3 Despite any other provision of this Agreement or any Other Transaction
Document, the Vendor's liability for a breach of any warranty,
representation or obligation on the part of the Vendor under this
Agreement or any Other Transaction Document and liability in tort
(including but not limited to negligence), under statute and on any
other basis in connection with this Agreement or any Other Transaction
Document, other than fraud, shall be limited in the aggregate for all
Claims to a maximum aggregate amount equivalent to the Total
Consideration.
24.4 For the purpose of determining the Total Consideration any Stock
transferred to the Vendor or any other party to the Other Transaction
Documents shall have ascribed to it the same value as was ascribed to in
accordance with this Agreement or the Consultancy Agreement at the time
the Vendor or any other party to the Other Transaction Documents became
entitled to receive the Stock.
25. SERVICE OF NOTICES
25.1 Any notice, document or demand (called "notice") under this Agreement
may be served in accordance with this clause.
25.2 The notice shall be in writing, signed by the party giving it or by that
party's solicitor.
25.3 The notice shall be served on the other party or on that party's
solicitor.
25.4 Particulars for the service of notices are:
▇▇▇▇▇▇-- ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Vendor's solicitor-- ▇▇▇▇▇▇▇ & ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
DX: ▇▇▇▇▇ ▇▇▇▇▇▇ STOCK EXCHANGE
Purchaser-- Sento Australia Pty Limited
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Address: ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Purchaser's Solicitor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Associates
Address: ▇▇▇▇▇ ▇▇, ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: (▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
DX: ▇▇▇▇ ▇▇▇▇▇▇
25.5 Either party may advise the other party of an additional or an altered
address for the service of notices, which is within the State of New
South Wales or Western Australia and is not a post office box or poste
restante.
25.6 A notice may be served:
(a) by delivering it to the party or to the party's solicitor at the
address shown in clause 25.4 or notified under clause 25.5
(called "the party's address") and leaving it with the party, the
solicitor or some other person accepting the notice on behalf of
either of them;
(b) by sending it by pre-paid post, correctly addressed, to the
party's address;
(c) by transmitting it on a Business day by facsimile to the party's
solicitor's facsimile receiving facility indicated in clause
25.4;
25.7 A notice is considered to have been served:
(a) at the time of delivery;
(b) on the third Business day after the day on which it is posted,
the first Business day being the day of posting;
(c) on the Business day on which the notice is received by the
recipient's facsimile receiving facility.
26. COSTS AND STAMP DUTY
Each party shall pay their own costs in respect of this Agreement and
the Purchaser shall pay stamp duty on the Agreement.
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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
