Exhibit 10.44
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") entered into as
of June 12th, 1997 ("Effective Date") between ijob, Inc.
("ijob"), an Oklahoma corporation whose principal place of
business is 00000 Xxxxxx Xxxx, Xxxxxx, XX 00000 and HT
Technologies, Inc. ("HT"), an Oklahoma corporation whose
principal place of business is 0000 X. Xxxxxxxx Xxxx, Xxxxxx,
Xxxxxxxx 00000; Xxxxx Xxxxxxxx, an individual whose business
address is 0000 X. Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000
("Xxxxxxxx"); and Xxx Xxxxxxx, an individual whose business
address is 0000 X. Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx
73013("Xxxxxxx").
WHEREAS, HT has developed certain software and software
related processes relating to the testing, identification and/or
referral of individuals seeking employment ("Software"); and
WHEREAS, ijob desires to acquire all of HT's interest in and
to said Software; and
WHEREAS, Xxxxxxxx and Xxxxxxx are the sole shareholders of
HT and Xxxxxxxx has executed an employment agreement ("Employment
Agreement") with ijob of even date herewith; and
WHEREAS, ijob, agrees to license back to HT certain rights
in the assets being purchased pursuant to this Agreement.
WHEREUPON, in consideration of the above premises and the
mutual agreements, representations and warranties set forth in
this Agreement, the parties agree as follows:
1. Sale of Assets. HT, Xxxxxxxx and Xxxxxxx agree to
sell and transfer to ijob, and ijob agrees to purchase from HT,
Xxxxxxxx and Xxxxxxx at the Closing (as hereinafter identified in
this section 1),all of HT's right, title and interest in and to
the assets identified on Exhibit A hereto ("Assets") free and
clear of any pledge, lien, option, security interest, mortgage
claim, charge or other encumbrance of any kind whatsoever except
as provided in Sections 3.4 and 3.5 hereof. Notwithstanding
anything to the contrary herein, it is agreed and understood that
HT's expatriate selection and testing program known as
"ipatriot" is not included in the Assets being sold to ijob by
HT. Also, notwithstanding anything to the contrary in this
Agreement, it is also agreed and understood that ijob is not
assuming any of HT's financial or other obligations whatsoever,
including without limiting the generality of the foregoing, any
financial or other obligations under the license agreements or
other agreements listed on Exhibit C hereto. The closing of such
sale shall take place at the offices of ijob on or before the
15th day of June, 1997 ("Closing").
2. Purchase Price. The consideration for the purchase of
said Assets shall be comprised of the following:
2.1 One Hundred ($100.00) Dollars paid at Closing to HT.
2.2 The issuance by Applied Intelligence Group, Inc.
("AIG") of thirty-eight thousand (38,000) stock options to
Xxxxxxxx and twelve thousand (12,000) stock warrants to Xxxxxxx
in AIG common stock with a price of $3.50 per share. Such stock
options and warrants shall be fully vested as of the Effective
Date of this Agreement but shall be forfeited to the extent that
they are not exercised within two (2) years of the Effective Date
of this Agreement.
2.3 Subject to the terms of subsections 2.3.1 and 2.3.2
hereof, the payment by ijob to HT of (i) fifty percent (50%) of
the Distributable Earnings of ijob, (ii) fifty percent (50%) of
the Distributable Proceeds from the sale of ijob assets and (iii)
fifty percent (50%) of any Distributable Gross Royalties received
by ijob from the sale or other transfer of ijob assets
(hereinafter collectively referred to as "Distributable
Amounts"). For purposes of this Agreement, what constitutes such
Distributable Amounts shall be determined from time to time by a
majority vote of the then current Board of Directors of ijob.
The other fifty percent (50%) of said Distributable Amounts shall
be distributed to AIG, which is an intended beneficiary of this
Agreement.
2.3.1 Notwithstanding anything to the contrary in
section 2.3 hereof but subject to the terms of
subsection 2.3.2 hereof, it is agreed and understood
that the Board of Directors of ijob shall have the
power and authority upon a majority vote to grant key
ijob employees a share in any or all of said
Distributable Amounts as ijob's Board deems
appropriate; provided however and notwithstanding
anything to the contrary in this subsection 2.3.1, any
such share(s) granted to other parties shall equally
reduce the amounts otherwise payable to HT and AIG from
said Distributable Amounts.
2.3.2 Notwithstanding anything to the contrary in
section 2.3 hereof or any subsection thereof, upon the
sale of all of the stock or of substantially all of the
assets of ijob, neither HT nor AIG nor any other person
who has been given a share(s) in said Distributable
Amounts shall have any further right to any share
therein except as may be reserved in such sale.
2.4 The granting of a license from ijob to HT to use
certain of the Assets subject to the terms and conditions of said
License. It is agreed and understood that although ijob is
acquiring said Assets, ijob is not assuming any of HT's
obligations under the licenses or other agreements identified on
Exhibit C hereto. The License shall be in substantially the form
set forth in Exhibit B hereto.
2.5 It is agreed and understood that AIG shall
have the right in its sole and absolute
discretion to sell any stock it holds in
ijob. Provided, however, and notwithstanding
anything to the contrary herein, HT shall
have a right of first refusal to match any
bona fide offer(s) from any third party or
parties, accepted by AIG, to purchase all or
any of the stock of ijob. Such right of
first refusal shall be on the same terms and
conditions as are set forth in any such bona
fide offer(s) which may be accepted by AIG;
provided however, HT must notify AIG in
writing within thirty (30) days of receipt of
notice from AIG that AIG either has or will
accept any such bona fide offer that HT will
exercise this right of first refusal and
agrees to meet the terms of such bona fide
offer. If AIG receives such notice that HT
will exercise its right of first refusal, AIG
agrees to sell to HT on such terms and
conditions. If AIG has not received such
notice from HT within such thirty (30) day
period, HT's right of first refusal as to
that bona fide offer is null and void and of
no further force and effect. In the event
that HT does not exercise its right of first
refusal, and AIG proceeds with such sale, HT
shall share in the net sales proceeds ("Net
Sales Proceeds") from such sale in an amount
equal to the amount it would have been
entitled to receive as Distributable Proceeds
from the sale of ijob assets pursuant to
either Section 2.3 or 2.3.1 of this
Agreement, as the case may be.
2.6 It is agreed and understood that HT shall have the
right, in its sole and absolute discretion, to transfer its
rights to receive Distributable Amounts under this Agreement.
Provided, however, and notwithstanding anything to the contrary
herein, AIG shall have a right of first refusal to match any bona
fide offer(s) from any third party, accepted by HT, to acquire
HT=s rights to any such Distributable Amounts. Such right of
first refusal shall be on the same terms and conditions as are
set forth in such bona fide offer(s) which may be accepted by HT;
provided however, AIG must notify HT in writing within thirty
(30) days of receipt of notice from HT that HT either has or will
accept any such bona fide offer that AIG will exercise this right
of first refusal and agrees to meet the terms of such bona fide
offer. If HT receives such notice that AIG will exercise its
right of first refusal, HT agrees to sell to AIG on such terms
and conditions. If HT has not received such notice from AIG
within such thirty (30) day period, AIG's right of first refusal
as to that bona fide offer is null and void and of no further
force and effect.
3. Representations and Warranties of HT, Xxxxxxxx and
Xxxxxxx. HT, Xxxxxxxx and Xxxxxxx covenant, represent and
warrant as follows:
3.1 HT is a corporation duly organized and validly existing
and in good standing under the laws of the State of Oklahoma and
its sole shareholders are Xxxxxxxx and Xxxxxxx.
3.2 HT has full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. No other corporate proceedings on the part
of HT are necessary to authorize the Agreement or to consummate
the transaction so contemplated.
3.3 Neither the execution and delivery by HT of this
Agreement, nor the consummation of the transactions contemplated
hereby will result in a default (or give rise to any right of
termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, license, agreement,
contract, or other instrument or obligation to which HT is a
party or by which HT or any of the Assets may be bound; or
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to HT or any of the Assets.
3.4 Except for any claims by AIG, Mastermind Technology,
Inc. and/or Xxxxx Master in or to any of the Assets, such Assets
or any portion thereof are not subject to any license or other
rights of any third party.
3.5 Except for any claims by AIG, Mastermind Technology,
Inc. and/or Xxxxx Master in or to the Assets, and except to the
extent that HT has granted licenses in or to said Assets in any
of the licenses identified on Exhibit C to this Agreement, HT,
Xxxxxxxx and Xxxxxxx have not mortgaged, pledged or subjected
any of said Assets to any lien, charge, security interest or any
other encumbrance or sold, assigned, transferred or granted any
rights or options of any kind or nature in the Assets or agreed
to do so.
3.6 Other than as contained in the Assets sold to ijob
pursuant to this Agreement, there are no patents, patents
pending, trademarks, trade names, service marks, copyright
registrations or applications therefor, owned, licensed or used
by or registered in the name of HT or other persons which apply
to the business. To the extent that any such rights exist, HT,
Xxxxxxxx and Xxxxxxx specifically agree to assign such unreserved
rights to ijob, so long as such rights relate to any of said
Assets.
3.7 There are no actions, suits, notices, proceedings,
orders, arbitrations or investigations (whether HT is plaintiff,
defendant, claimant or subject) pending or, to the best knowledge
of HT and the Shareholders, threatened against or affecting the
Assets, at law or equity, or before or by any federal, state,
municipal or other governmental departments, commission, board,
bureau, agency or instrumentality, domestic or foreign, (and to
the best knowledge of HT and its Shareholders, there exists no
set of facts which would give rise to any of the foregoing).
3.8 The consummation of the transactions contemplated by
this Agreement will not violate, or require compliance with, the
bulk sale or bulk transfer law of any jurisdiction.
3.9 That neither of them have dealt with any person, firm
or corporation who is or may be entitled to a broker's
commission, finder's fee or similar payment from the other party
for arranging the transactions contemplated herein or introducing
the parties to each other.
3.10 The persons signing below on behalf of the respective
parties represent and warrant that they have the authority to
bind the party on whose behalf they have executed this Agreement.
3.11 In the event that the Closing does not take place
contemporaneously with the execution of this Agreement, all of
the covenants, warranties and representations set forth in this
section 3 or elsewhere in this Agreement shall also be true as of
the Closing and HT, Xxxxxxxx and Xxxxxxx shall give ijob a
written statement to that effect at Closing.
4. Transfer of Documents; Further Assurances. At Closing,
HT will transfer and deliver to ijob all of its right, title and
interest in and to the Assets, and will also then deliver to ijob
all such assignments, bills of sale and instruments of
conveyance, in form and substance reasonably satisfactory to
ijob, and transfer as shall be necessary and effective to
transfer to and vest in ijob good and valid title to all of said
Assets. At the request of ijob after the Closing, HT will
execute and deliver any further instruments of conveyance and
transfer or confirmation thereof and will take such other action
as may reasonably be requested by ijob in order to make effective
and to transfer the Assets contemplated by this Agreement.
5. Indemnification.
5.1 By HT, Xxxxxxxx and/or Xxxxxxx. HT, Xxxxxxxx and
Xxxxxxx jointly and individually agree to indemnify, defend, and
hold ijob harmless from and against and in respect to any and all
damages, losses, deficiencies, liabilities, out-of-pocket costs,
attorney fees and expenses, claims, actions, suits or other
proceedings resulting from, related to or arising out of (i) any
breach of any covenant, warranty or representation of HT,
Xxxxxxxx and/or Xxxxxxx in this Agreement, (ii) any
misrepresentation in or omission from any schedule, certificate
or other document furnished or to be furnished to ijob under this
Agreement and (iii) any breach by HT, Xxxxxxxx or Xxxxxxx of any
of their obligations or duties under the licenses or other
agreements identified on Exhibit C hereto or under any other
agreements otherwise executed or otherwise entered into by HT,
Xxxxxxxx or Xxxxxxx.
5.2 By ijob. ijob agrees to indemnify, defend, and hold
HT, Xxxxxxxx and Xxxxxxx harmless from and against and in respect
to any and all damages, losses, deficiencies, liabilities, out-of-
pocket costs, attorney fees and expenses, claims, actions, suits
or other proceedings resulting from, related to or arising out of
the operations of ijob after Closing except to the extent that
the same may be covered by or relate to or arise out of the
provisions of Section 5.1 hereof and/or the obligations of HT,
Xxxxxxxx and/or Xxxxxxx thereunder.
6. Non-Competition; Confidentiality; Non-Solicitation. In
order to induce ijob to enter into this Agreement and the
transactions contemplated hereby, HT, Xxxxxxxx and Xxxxxxx agree
as follows:
6.1 Non-Competition. HT, Xxxxxxxx and Xxxxxxx agree that
for so long as HT is eligible to receive any Distributable
Amounts from ijob pursuant to Section 2.3 hereof or any
subsection(s) thereof and for a period of two (2) years
subsequent thereto, none of them will compete directly or
indirectly (whether as proprietor, partner, principal,
stockholder, agent, consultant, adviser, employee or otherwise)
with the activities of ijob or solicit existing customers of
ijob. The restrictions on Xxxxxxxx set forth in this section 6.1
are in addition to, and not in lieu of, any restrictions placed
upon him in said Employment Agreement.
6.2 Confidentiality Agreement. HT, Xxxxxxxx and Xxxxxxx
agree to hold all business information and data of ijob as the
confidential and proprietary property of ijob. Moreover, except
to the extent set forth in the license agreement issued pursuant
to Section 2.4 hereof, they and each of them agree that they
will not make any voluntary or independent use of any
confidential, trade secret, trademark, copyrightable, patented or
patentable, or other proprietary business information of ijob,
including, but not limited to, customer lists, computer
programs, databases, pricing formulae, designs, research files,
or any other related information or attempt to procure any rights
adverse to ijob in any intellectual property as listed herein.
7. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto concerning the
subject matter thereof. No prior or contemporaneous
representations, inducements, promises, or agreements, oral or
otherwise, between the parties with reference thereto shall be of
any force or effect.
8. Modification. This Agreement may not be modified,
waived, amended, in whole or in part, without the written consent
of each of the parties hereto.
9. Arbitration. Any controversy or claim arising out of
or relating to this Agreement, or its breach, or its validity or
interpretation, except claims for injunctive relief and claims
involving necessary third parties who refuse to participate,
shall be settled by binding arbitration in accordance with the
then current Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). The location for the
arbitration shall be in Oklahoma County, Oklahoma. Such
arbitration shall be heard and determined by a panel of three (3)
arbitrators in accordance with the then current rules or
regulations of the AAA relating to commercial disputes. One
arbitrator shall be appointed by each party to serve on the
panel. One neutral arbitrator shall be appointed by the AAA and
shall serve as chair-person of the three arbitrator panel. Such
neutral arbitrator shall be an attorney with experience in
handling disputes relating to commercial and/or corporate
litigation disputes. The arbitration award shall be binding on
the parties and may be enforced in any court of competent
jurisdiction. The prevailing party in such arbitration shall be
entitled to recover its reasonable attorney fees and costs
incurred in such arbitration proceeding.
10. Binding. This Agreement is binding on, and inures to
the benefit of ijob, HT, Mitchell, Xxxxxxx and their respective
heirs, successors and assigns to the extent permitted by said
Agreement.
11. Captions. The captions of the various sections or
paragraphs used in said Agreement are for convenience only, and
they are not intended to be any part of the body or text of said
Agreement, nor shall they be utilized in construing any of the
provisions thereof.
12. Attorney Fees. In the event that litigation is
instituted between the parties in connection with any controversy
or dispute arising out of or relating to said Agreement, the
prevailing party in such litigation shall be entitled to recover
its reasonable attorney fees and costs.
13. Severability. If any provision of said Agreement shall
be deemed invalid or unenforceable, the remaining provisions of
said Agreement shall not be affected thereby and each remaining
provision shall be valid and enforceable to the fullest extent
permitted by law.
14. Nonwaiver. Any waiver by a party of any breach of any
provision of this Agreement shall not be construed as a waiver of
any continuing or succeeding breach of such provision, a waiver
of that provision itself or a waiver of any other right(s) under
this Agreement.
15. Notice. All communications and notices provided for or
permitted in this Agreement shall be made in writing and shall be
personally delivered, mailed by certified mail, postage prepaid,
or sent by overnight courier to the party at its address first
specified above or to such other address as either party shall
have communicated by written notice to the other.
16. Survival. Unless otherwise specified all of the terms
of this Agreement shall survive the Closing .
ijob, INC. HUMAN TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxx
Its: Vice President Its: President
Date: June 12, 1997 Date: June 12, 1997
/s/ Xxx Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
XXX XXXXXXX XXXXX XXXXXXXX
June 12, 1997 June 12, 1997
Date Date
Applied Intelligence Group, Inc. (consenting and agreeing only as
to the terms of this Asset Purchase Agreement applicable to
Applied Intelligence Group, Inc. and in this regard AIG warrants
that it is a corporation in good standing under the laws of the
state of Oklahoma. )
By: /s/ Xxxxxx X. Xxxxxx
Its: President
