EXHIBIT 2.5
STOCK PURCHASE AGREEMENT
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This STOCK PURCHASE AGREEMENT (the "Agreement"), is made and entered
into as of the 31st day of December, 1998, by and among DCM Company, Inc., an
Oklahoma corporation ("DCM"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ijob, Inc., an
Oklahoma corporation ("IJOB"), and The viaLink Company (formerly Applied
Intelligence Group, Inc.), an Oklahoma corporation ("viaLink"), with respect to
the following circumstances:
WHEREAS viaLink is the legal and beneficial owner of all the issued
and outstanding capital stock of IJOB; and
WHEREAS DCM desires to purchase all of said stock of IJOB; and
WHEREAS ▇▇▇▇▇▇▇▇ is the sole director and shareholder of DCM and a
director of IJOB; and
WHEREAS viaLink desires to sell all of said stock of IJOB to DCM
pursuant to and subject to the terms and conditions of this Agreement; and
WHEREAS IJOB agrees to pledge all of its assets to secure the purchase
of said stock by DCM; and
WHEREAS, ▇▇▇▇▇▇▇▇, DCM and IJOB agrees to indemnify viaLink as set
forth in this Agreement.
WHEREUPON, in consideration of the above premises and in consideration of other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
Definitions
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Whenever used in this Agreement, the following terms shall have the
meanings assigned to them in this Article I.
(a) "HT Agreement" -- shall mean the Asset Purchase Agreement, dated
as of June 12, 1997, by and among IJOB, ▇▇▇▇▇▇▇▇, ▇▇ Technologies, Inc., an
Oklahoma corporation (also known as Human Technologies, Inc.), and ▇▇▇ ▇▇▇▇▇▇▇,
a copy of which is attached hereto as Exhibit 1.
(b) "▇▇▇▇▇▇▇▇ Contract" shall mean the agreement setting forth certain
terms and conditions of employment between IJOB and ▇▇▇▇▇▇▇▇ dated June 12, 1997
("▇▇▇▇▇▇▇▇ Contract") which is attached hereto marked Exhibit 2.
(c) "▇▇▇▇▇ Contract" shall mean the agreement setting forth certain
terms
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and conditions of employment between IJOB and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated January 3,
1997 which is attached hereto marked Exhibit 3.
(d) "▇▇▇▇▇▇▇▇ Contract" shall mean the agreement setting forth certain
terms and conditions of employment between IJOB and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated July
14, 1997 which is attached hereto marked Exhibit 4.
(e) "▇▇▇▇▇▇▇ Contract" shall mean the agreement setting forth certain
terms and conditions of employment between IJOB and ▇▇▇▇▇ ▇▇▇▇▇▇▇ dated July 10,
1997 which is attached hereto marked Exhibit 5.
(f) "IJOB Shares" shall mean the 1,000 shares of 0.001 cent per share
par value, voting, common capital stock of IJOB, evidenced by Stock Certificate
No. 1, dated April 25, 1997, issued in the name of Applied Intelligence Group,
Inc. (now known as The viaLink Company).
(g) "Promissory Note" shall mean the promissory note, dated as of
Closing, made by DCM and IJOB in favor of viaLink, in the form of Exhibit 6
attached hereto and incorporated herein by reference.
(h) "Agreement" shall mean (i) this Agreement, (ii) the Agreement
Documents and (iii) the Schedules attached to this Agreement
(i) "Agreement Documents" shall mean this Agreement and the various
Exhibits attached to this Agreement which are to be executed by a party at or
before the Closing and the Schedules attached hereto.
ARTICLE II
Purchase and Sale of IJOB Shares;
Security for Obligation
-----------------------
2.1 Sale and Delivery of IJOB Shares. Subject to the terms,
--------------------------------
covenants and conditions set forth in this Agreement, as of the Closing, DCM
shall purchase from viaLink, and viaLink shall sell to DCM, all of viaLink's
right, title and interest in and to the IJOB Shares on the terms, covenants and
conditions and for the purchase price set forth in this Agreement. The purchase
price for the IJOB Shares shall be $800,000, payable by execution by DCM and
IJOB of said Promissory Note as of the Closing. Upon receipt of the Promissory
Note and compliance by ▇▇▇▇▇▇▇▇, DCM and IJOB with all other terms, covenants
and conditions of this Agreement, viaLink shall deliver to DCM the IJOB Stock
Certificate and a Stock Assignment & Power of Attorney, in the form of Exhibit 7
attached hereto, whereby viaLink assigns the IJOB Shares to DCM as of the
Closing.
2.2 Security for the Promissory Note. As security for the
--------------------------------
obligation evidenced by the Promissory Note, IJOB and DCM shall, as of the
Closing, execute a
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Security and Pledge Agreement, in the form of Exhibit 8 attached hereto, and a
Financing Statement in the form of Exhibit 9 attached hereto along with any
other instruments and agreements required therein, all of which are incorporated
herein by reference..
2.3 Closing of Transactions. The closing ("Closing") of the
-----------------------
transactions contemplated hereby shall occur on or before 5:00 p.m. on December
31, 1998, at the offices of IJOB or viaLink, or at a different time and place
established by written agreement of the parties.
ARTICLE III
Representations and Warranties
------------------------------
3.1 Representations and Warranties of DCM. DCM represents and
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warrants as follows:
(a) That DCM is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma.
(b) That the execution, delivery and performance of this Agreement
and consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite action on the part of DCM and will not
violate, or be in conflict with, any provisions of any of DCM's governing
documents or any other agreement or document to which DCM is a party or by which
it is bound.
(c) That DCM has not and will not pledge or otherwise grant any
security interest in any of the collateral covered by said the Security and
Pledge Agreement and said Financing Statement which is prior to the interest of
viaLink in said collateral.
(d) That the Security and Pledge Agreement and said Financing
Statement shall constitute a first and prior lien on all of the Collateral
covered by said the Security and Pledge Agreement and said Financing Statement.
3.2 Representations and Warranties of IJOB. IJOB represents and
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warrants to viaLink as follows:
-------------------------------
(a) That the execution, delivery and performance of this Agreement
have been duly and validly authorized by all requisite action on the part of
IJOB and the consummation of the transactions contemplated hereby will not
violate, or be in conflict with, any provisions of any of the governing
documents of IJOB or any other agreement or document to which IJOB is a party
or by which it is bound.
(b) That no written employment agreements other than said Mitchell,
Thurman, ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ Contracts have been executed by IJOB.
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(c) That IJOB has not granted any legal or beneficial interest in IJOB
or in the IJOB Shares to anyone except to the extent any such interest may have
been granted in said Mitchell, Thurman, ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ Contracts or in said
HT Agreement.
(d) That IJOB has not and will not pledge or otherwise grant any
security interest in any of the collateral covered by said Security and Pledge
Agreement and said Financing Statement which is prior to the interest of viaLink
in said collateral.
3.3 Representations and Warranties of ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ represents
------------------------------------------
and warrants as follows:
(a) That, prior to consummation of the transactions contemplated by
this Agreement, he has no legal or beneficial ownership or title to the IJOB
Shares except to the extent that any such interest exists as a result of the HT
Agreement.
(b) That as a director of IJOB he consents to the action taken by IJOB
in relation to this transaction.
(c) That he has no right, title or interest in or to the proceeds of
the Promissory Note.
(d) That the execution, delivery and performance of this Agreement
have been duly and validly authorized by all requisite action on the part of
IJOB and the consummation of the transactions contemplated hereby will not
violate, or be in conflict with, any provisions of any of the governing
documents of IJOB or any other agreement or document to which IJOB is a party
or by which it is bound.
(e) That no written employment agreements other than said Mitchell,
Thurman, ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ Contracts have been executed by ▇▇▇▇▇▇▇▇ or by IJOB.
(f) That neither he, IJOB, nor DCM has or will pledge or otherwise
grant any security interest in any of the collateral covered by said Security
and Pledge Agreement and said Financing Statement which is prior to the interest
of viaLink in said collateral.
(g) That neither he nor IJOB has granted any legal or beneficial
interest in IJOB to anyone except to the extent any such interest may have been
granted in said Mitchell, Thurman, ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ Contracts, except to the
extent that any such interest exists as a result of the HT Agreement.
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3.4 Representations and Warranties of viaLink. viaLink represents
-----------------------------------------
and warrants as follows:
(a) That viaLink and IJOB are corporations duly organized, validly
existing and in good standing under the laws of the State of Oklahoma.
(b) That the execution, delivery and performance of this Agreement
have been duly and validly authorized by all requisite action on the part of
viaLink and the consummation of the transactions contemplated hereby will not
violate, or be in conflict with, any provisions of any of the governing
documents of viaLink or or any other agreement or document to which viaLink is a
party or by which it is bound.
(c) That, subject to the terms, covenants and conditions of this
Agreement, including without limitation paragraph 3.3(d) of this Agreement,
viaLink is the record title holder and beneficial owner of all of the IJOB
Shares which consist of only one class, that is voting common capital stock, and
which constitute all the issued and outstanding capital stock of IJOB.
(d) That the IJOB Shares are owned and held by viaLink free and
clear of any encumbrances, pledges, loans, liens, restrictions on transfer,
taxes, security interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands, except for and specifically
excluding from such representations and warranties such matters arising from or
relating to any actions taken by any person or entity beyond viaLink's control
and/or without the approval of viaLink's Board of Directors, including, without
limiting the generality of the foregoing, any actions taken by ▇▇▇▇▇▇▇▇, (ii)
any actions taken by or in regard to Human Technologies, Inc. (also known as HT
Technologies, Inc.), ▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇▇ in regard to or arising from
the HT Agreement or otherwise, (iii) any interest in the IJOB Shares arising out
of said Mitchell, Greenhaw, ▇▇▇▇▇▇▇, and/or ▇▇▇▇▇ Contracts.
ARTICLE IV
Covenants of the Parties
------------------------
4.1 Service Agreement. Pursuant to a written service agreement in
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the form of Exhibit 10 attached hereto and incorporated herein by reference
("Services Agreement"), viaLink shall provide the facilities and services set
forth in said Service Agreement.
4.2 Vacation of Premises. Within 30 days after the Closing, DCM and
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IJOB shall cause the business, operations, personnel and property of IJOB to be
removed from the premises of viaLink, except to the extent the same are subject
to said Service Agreement executed pursuant to paragraph 4.1 hereof. During
said 30 day period, IJOB's business operations, personnel and property may
remain on viaLink's premises without rent or cost except as set forth in
paragraph 4.1 hereof . During such
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thirty day period, IJOB shall carry general liability insurance covering its
activities on the viaLink premises in an amount not less than one million
dollars combined single limit which shall name viaLink as an additional named
insured. A certificate of such insurance shall be delivered to viaLink. During
such thirty day period IJOB shall follow such policies and restrictions on the
use of the premises as are reasonably required by viaLink.
4.3 Intercompany Debt. As of Closing, all money loaned by viaLink
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to IJOB as of the Closing, except (i) such sums represented by the Promissory
Note, (ii) any accounts payable or taxes incurred by or on behalf of IJOB which
have not been paid by IJOB as of Closing and (iii) any obligations of IJOB
arising out of this Agreement, shall be deemed paid in full and cancelled. The
parties agree and acknowledge that said accounts payable include but are not
limited to the payables shown on Schedule A which is attached hereto and
incorporated herein by reference. Notwithstanding anything to the contrary
herein, viaLink agrees to reimburse IJOB for any payroll related taxes incurred
as a result of payroll paid by IJOB in the ordinary course of business
consistent with past practices prior to Closing.
4.4 Assets. The parties agree and acknowledge that the only assets
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in whichIJOB claims an interest are those assets identified on Schedule B which
is attached hereto and incorporated herein by reference.
4.5 Waiver of Conflict as to ▇▇▇▇▇▇▇▇. viaLink waives any conflict
---------------------------------
of interest against ▇▇▇▇▇▇▇▇ arising in regard to his status as a shareholder,
officer, director and employee of IJOB or DCM in relation to his involvement in
the transaction set forth in this Agreement.
4.6 Confidentiality and Non-Competition. ViaLink agrees and
-----------------------------------
covenants that it will maintain and keep as confidential, and will not disclose
or use the following: (i) software and code owned and/or developed by IJOB; (ii)
intellectual property rights owned by IJOB; (iii) ijob's trade secrets, as
defined by Oklahoma's Uniform Trade Secrets Act; and (iv) ijob's price lists;
provided however, that the foregoing shall not apply to any of such information
which is (a) disclosed by ijob to third parties without restriction on further
disclosure; (b) is public information or in the public domain; (c) is developed
by viaLink without regard to such confidential information of ijob; or (d) is
required to be disclosed by viaLink pursuant to Court order or other operation
of law.
4.7 Indemnification:
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(a) By IJOB and DCM. From and after the Closing, DCM and IJOB shall
indemnify, defend, protect and hold harmless viaLink, from and against all
losses, liabilities, obligations, damages, deprivation of benefits, costs and
expenses (including, without limiting the generality of the foregoing,
reasonable attorneys' fees) (collectively hereinafter "Losses"), which result
from or arise in connection with: (a) any breach of any warranty made by DCM,
▇▇▇▇▇▇▇▇ or IJOB in the Agreement or any representation in any of the Agreement
Documents, not being true when made or when required by this
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Agreement to be true in all material respects, or in any certificate or other
instrument delivered by or on behalf of IJOB pursuant thereto not being true
when made or when required by this Agreement to be true in all material
respects; or (b) any breach of any term, covenant, agreement or condition
imposed upon by DCM, ▇▇▇▇▇▇▇▇ or IJOB in this Agreement or any of the Agreement
Documents to be performed (prior to or after the Closing) by DCM, ▇▇▇▇▇▇▇▇ or
IJOB or (c) the failure of IJOB to pay any obligation(s) of IJOB; (d) any act or
omission of ▇▇▇▇▇▇▇▇ while serving as an officer, employee, director or agent of
IJOB; (e) any Losses arising from claims by IJOB employees terminated from any
viaLink benefit plans as a result of the sale of the stock of IJOB pursuant to
this Agreement or for vacation earned but not taken in 1998; (f) and any Losses
arising out of claims made in relation to the Greenhaw, Usher, ▇▇▇▇▇▇▇▇, or
▇▇▇▇▇▇▇ Contracts or the HT Agreement. The parties anticipate that a claim for
indemnification may be made under any or all of subsections (a) through (f) of
this subparagraph; in any such case, each such clause and sub-clause shall be
independently effective to provide viaLink with a right to indemnification. The
indemnification rights granted viaLink in this paragraph 4.6(a) are in addition
to and not in lieu of the indemnification rights granted viaLink in paragraph
4.6(b) hereof.
(b) By ▇▇▇▇▇▇▇▇. From and after the Closing, ▇▇▇▇▇▇▇▇ shall indemnify,
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defend, protect and hold harmless viaLink, from and against all losses,
liabilities, obligations, damages, deprivation of benefits, costs and expenses
(including, without limiting the generality of the foregoing, reasonable
attorneys' fees) (collectively hereinafter "Losses"), which result (i) from any
breach of any warranty made by ▇▇▇▇▇▇▇▇ in paragraphs3.3 (a)-(g) inclusive of
this Agreement or (ii) from any acts or omissions of ▇▇▇▇▇▇▇▇ while serving as
an officer, employee, director or agent of IJOB or (iii) and any Losses arising
out of claims made in relation to the Greenhaw, Usher, ▇▇▇▇▇▇▇▇, or ▇▇▇▇▇▇▇
Contracts or the HT Agreement. The parties anticipate that a claim for
indemnification may be made by viaLink under either or both of subsections (a)
and (b) of this subparagraph; in any such case, each such clause and sub-clause
shall be independently effective to provide viaLink with a right to
indemnification. The indemnification rights granted viaLink in this paragraph
4.7(b) are in addition to and not in lieu of the indemnification rights granted
viaLink in paragraph 4.7(a) hereof.
(c) By viaLink. From and after the Closing, viaLink shall indemnify,
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defend, protect and hold harmless DCM, ▇▇▇▇▇▇▇▇ and IJOB, from and against all
losses, liabilities, obligations, damages, deprivation of benefits, costs and
expenses (including, without limiting the generality of the foregoing,
reasonable attorneys' fees) (collectively hereinafter "Losses"), which result
from any breach of any warranty made by viaLink in paragraph 3.4 of this
Agreement and from any breach of any of viaLink's covenants and representations
in this Agreement
(d) Whenever any claim shall arise for indemnification under this
paragraph 4.6, the party entitled to such indemnification (the "Indemnitee")
shall notify the party from whom indemnification is sought (the "Indemnitor") of
such claim in writing promptly and in no case later than ninety (90) days after
such Indemnitee has received
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actual written notice of the facts constituting the basis for such claim; each
Indemnitee shall also so notify the Indemnitor promptly and in no case later
than fifteen (15) days after the commencement of any legal proceedings with
respect to any such claim. The failure to notify the Indemnitor will not relieve
the Indemnitor from any liability which it may have to any Indemnitee to the
extent the Indemnitor is not prejudiced as a proximate result of such failure.
Such notice shall specify, in reasonable detail, the facts known to such
Indemnitee giving rise to the indemnification sought. Such notice shall also
include photocopies of all relevant communications received from third party
claimants and their attorneys. If the facts giving rise to any indemnification
provided for in this Agreement shall involve any actual or threatened claim or
demand by any person other than a party to the Agreement or its successors or
permitted assigns (a "Third Party") against any Indemnitee, the Indemnitor shall
be entitled, upon its election, by written notice given to the Indemnitee as
soon as reasonably practicable and in any case within thirty (30) days after the
date on which notice of the claim or demand is given to the Indemnitor (without
prejudice to the right of such Indemnitee to participate at its expense through
counsel of its own choosing), to assume the defense of such claim and any
litigation resulting therefrom at its expense and through counsel of its own
choosing; provided, however, that if by reason of the claim of such Third Party
a Lien, attachment, garnishment or execution is placed upon any of the property
or assets of such Indemnitee, the Indemnitor, if it desires to exercise its
right to defend such claim or litigation, shall furnish an indemnity bond or
other form of security reasonably satisfactory to the Indemnitee to obtain the
prompt release of such Lien, attachment, garnishment or execution. If the
Indemnitor assumes the defense of any such claim or litigation, it shall take
all steps reasonably necessary in the defense or settlement of such claim or
litigation. In any such suit, action or proceeding, the Indemnitee shall have
the right to control its own defense through its own counsel, but the fees and
expenses of such counsel shall be at its own expense unless (i) the parties
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to such suit, action or proceeding (including any impleaded parties)
shall include an Indemnitee and an Indemnitor and the representation of both
parties by the same counsel would present a conflict of interest as reasonably
determined by counsel to the Indemnitee, in which event the Indemnitor shall pay
such counsel's fees and expenses. If the Indemnitor has timely assumed defense,
the Indemnitor shall not be liable for any settlement effected without its
consent, which consent shall not be unreasonably withheld or delayed. The
Indemnitor may settle any claim without the consent of any Indemnitee, but only
if the sole relief awarded is money damages that are paid in full by the
Indemnitor and either (i) the consent to the entry of any judgment or settlement
includes as an unconditional term thereof the giving to the Indemnitee of a
release from all liability in respect to such claim or litigation or (ii) the
litigation against the Indemnitee is dismissed with prejudice; otherwise, the
Indemnitor may not settle any claim against an Indemnitee without the consent of
the Indemnitee, which consent shall not unreasonably withheld or delayed. The
parties shall cooperate in the defense of any such claim or litigation. If the
Indemnitor does not timely assume the defense of any such claim or litigation,
the Indemnitee may defend against such claim or litigation in such manner as it
may deem appropriate and may settle such claim or litigation, after
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giving written notice thereof to the Indemnitor, on such terms as such
Indemnitee may deem appropriate; and the Indemnitor will promptly reimburse such
Indemnitee for the Losses incurred as a result of such settlement. If no
settlement of such claim or litigation is made, the Indemnitor shall promptly
reimburse such Indemnitee for the amount of any judgment rendered with respect
to such claim or such litigation and for all expenses, legal and other, incurred
by such Indemnitee in connection with any such judgment for which the Indemnitee
has been so reimbursed pursuant hereto; provided, however, that if such judgment
is appealable and such Indemnitee notifies the Indemnitor of its intention not
to appeal, the Indemnitor may prosecute such appeal, at its sole cost and
expense and subject to the obligations set forth herein. Each amount determined
to be payable by an Indemnitor to an Indemnitee under the terms hereof
("Indemnity") shall be paid in cash to the Indemnitee within thirty (30) days
after the date on which the Indemnitor is notified in writing of the amount of
such Indemnity, as finally determined in accordance with the terms hereof. Each
such notice shall contain an itemization of the damages, expenses, costs and
liabilities comprising the Indemnity, certified to be true and correct by the
Indemnitee or its legal representative.
4.8 In no event shall any party have a right to recover punitive
damages or incidental, consequential, or special damages in relation to any
claim made against another party to this Agreement.
4.9 For a period of five years from the Closing, viaLink shall not
directly or indirectly engage in or compete with IJOB in the sale of software
which is designed for the hiring or screening of job applicants via the Internet
("Software"). viaLink acknowledges and agrees that the current market for the
Software extends throughout the entire United States, and it is therefore
reasonable to prohibit viaLink from competing with IJOB within such territory.
To the extent any provision of portion of this Section 4.9 shall be held, found,
or deemed to be unreasonable, unlawful or unenforceable, then the parties hereto
expressly covenant and agree that any such provision or portion hereof shall be
modified to the extent necessary in order that any such provision or portion
thereof shall be legally enforeceable to the fullest extent permitted by
applicable law and that any court of competent jurisdiction shall, and the
parties hereto do hereby expressly authorize any court of competent to, enforce
any such provision or portion thereof or to modify any portion thereof in order
that any such provision or portion thereof shall be enforeced by such court to
the fullest extent applicable law. Notwithstanding anything to the contrary in
this Agreement, the provisions of this Section 4.9 do not apply and are not
binding on any successor or assign of viaLink in which viaLink does not own at
least 51% of the voting stock of such successor or assign.
4.10 Upon Closing, viaLink acknowledges that it has no further right
and interest of any type or nature under the HT Agreement.
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ARTICLE V
Conditions Precedent to Closing
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5.1 Conditions Precedent to Obligations of DCM and ▇▇▇▇▇▇▇▇. As an
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absolute condition precedent to any duties and obligations of DCM or ▇▇▇▇▇▇▇▇
hereunder, or under any of the Agreement Documents, at or before the Closing,
DCM and ▇▇▇▇▇▇▇▇ shall receive the following signed items from viaLink:
(i) (Left blank intentionally);
(ii) (Left blank intentionally)
(iii) The Assignment of Rights Agreement attached hereto as Exhibit
12.
5.2 Conditions Precedent to viaLink's Obligations. As an absolute
---------------------------------------------
condition precedent to viaLink's duties and obligations under this Agreement, at
Closing viaLink shall receive the following documents:
(i) Executed Release and Subrogation Agreements, in the form of
Exhibits 12-16 attached hereto and incorporated herein be reference, from Human
Technologies, Inc., ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
(ii) A resolution of the Board of Directors of IJOB authorizing
▇▇▇▇▇▇▇▇'▇ execution of this Agreement and the Agreement Documents on behalf of
IJOB.
ARTICLE VI
Miscellaneous
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6.1 Notices. All notices and communications required or permitted
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hereunder shall be in writing and may be given either by personal delivery,
facsimile, or certified mail, return receipt requested, addressed as follows:
If to viaLink:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
The viaLink Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to IJOB or DCM:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
c/o The ▇▇▇▇▇▇ Law Firm, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o The ▇▇▇▇▇▇ Law Firm, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6.2 Governing Law. This Agreement and the transactions contemplated
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hereby shall be governed by, performed under, and construed in accordance with
the laws of the State of Oklahoma.
6.3 Amendments. This Agreement may not be amended nor any rights
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hereunder be waived except by an instrument in writing signed by the party to be
charged with such amendment or waiver.
6.4 Captions; Meaning of Pronouns. The captions in this Agreement
-----------------------------
are for convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof. Unless the context otherwise requires, all
pronouns shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as the identity of the person or persons may require.
6.5 Counterparts; Binding Effect. This Agreement may be executed in
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any number of counterparts, any of which shall be considered an original. All
counterparts shall be but one agreement, and the Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
estates, personal representatives, successors and assigns.
6.6 Parties in Interest. Nothing in this Agreement, express or
-------------------
implied, is intended to confer upon any person other than the parties hereto any
benefits, rights or remedies.
6.7 Survival. The representations,, warranties, covenants and
--------
agreements contained in this Agreement shall survive the Closing of this
Agreement. Without limiting the generality of the foregoing, the provisions of
Section 2.2 and all of Article III, Article IV, and Article VI shall survive the
Closing.
6.8 Construction. The parties acknowledge that they and their
------------
respective counsel have negotiated and drafted, or have been given the
opportunity to
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review, this Agreement and agree that the rule of construction that ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation or construction of the Agreement.
6.10 Assignment. Neither this Agreement nor any rights or
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obligations arising hereunder may be assigned in whole or in part by any DCM,
IJOB or ▇▇▇▇▇▇▇▇, without the prior written consent of viaLink, which consent
shall not unreasonably withheld. Any such assignment consented to by viaLink
shall not relieve the assignor of its responsibility to viaLink. viaLink has no
limitations on its rights to assign any of its rights or obligations under this
Agreement.
6.11 Conflicts of Interest. The parties acknowledge and hereby waive
---------------------
any conflicts of interest that may exist because (i) counsel for DCM, McAfee &
▇▇▇▇ A Professional Corporation and The ▇▇▇▇▇▇ Law Firm, P.C., have performed
prior legal services for IJOB, ▇▇▇▇▇▇▇▇ and/or viaLink, and (ii) counsel for
viaLink, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, P.C., has performed prior legal
services for IJOB.
6.12 Costs. In any action to enforce any rights or obligations
-----
hereunder, the prevailing party shall be entitled to receive its costs and
attorneys fees expended in such an action from the other party.
6.13 Entire Agreement. This Agreement is the entire Agreement among
----------------
the parties and, when executed by the parties, supersedes all prior agreements,
understandings and communications, either verbal or in writing, between the
parties with respect to the subject matter contained herein. Without limiting
the generality of the foregoing, the parties acknowledge and agree that the
Letter of Intent executed by viaLink and ▇▇▇▇▇▇▇▇ on December 24, 1998, a copy
of which is attached hereto as Exhibit 17, is null and void and of no further
force and effect.
6.14 viaLink shall be entitled to retain any records of ijob which it
requires for the filing of any tax returns for such period of time when IJOB was
a subsidiary of viaLink; provided, however, all such records will be returned
upon the request of IJOB on or after May 1, 1999. After such documents are
returned, viaLink shall have such access to them as is reasonable necessary to
meet the business and accounting needs of viaLink, and viaLink may make such
copies of such documents as is reasonably necessary thereof.
6.15 DCM, ijob and ▇▇▇▇▇▇▇▇ acknowledge that viaLink has disclosed
that possible alleged claims may be asserted by or on behalf of Mastermind
Technology, Inc. and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇ against the intellectual property assets
of IJOB.
6.16 Arbitration. Any controversy or claim arising out of or
relating to said Agreement, or its breach, or its validity or interpretation,
except claims for injunctive relief, claims involving necessary third parties
who refuse to participate, and claims by viaLink to enforce any of its rights
under the Promissory Note and/or Security and
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Pledge Agreement and/or Financing Statement shall be settled by final, mandatory
and binding arbitration in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association ("AAA") subject,
however, to the following:
(a) The location for the arbitration shall be at such location as
agreed by the parties in Oklahoma County, Oklahoma or if the parties cannot
agree at such location in Oklahoma County, Oklahoma as designated by the
AAA.
(b) 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 ("Rules"). All
arbitrators shall be selected pursuant to the then current Rules thereof
within thirty (30) days after the filing of a demand for arbitration. Each
arbitrator shall be a person with experience in handling disputes relating
to the sale of corporate stock and/or assets.
(c) The hearing on the arbitration shall be heard not later than six
(6) months after the demand for arbitration has been made by a party.
(d) The arbitration award shall be final and binding on the parties
and may be enforced in any court of competent jurisdiction.
(e) The prevailing party in such arbitration or other litigation
allowed by this Agreement shall be entitled to recover its reasonable
attorney fees and costs incurred in such arbitration proceeding.
IN WITNESS WHEREOF, this Agreement has been executed to be effective
as of the date first above written.
The viaLINK COMPANY, an Oklahoma corporation
By:/s/ ▇▇▇▇▇ ▇. Kilfourne
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
IJOB, INC., an Oklahoma corporation
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
DCM COMPANY, INC., an Oklahoma corporation
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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