UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: Oct 27, 1998 Date of Earliest Event reported: Oct 16, 1998
THE VIALINK COMPANY
(Exact name of Registrant as specified in its charter)
OKLAHOMA 000-21729 73-1247666
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
13800 BENSON ROAD
EDMOND, OKLAHOMA 73013
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (405) 936-2300
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
Pursuant to the Asset Acquisition Agreement dated August 31,
1998, Applied Intelligence Group, Inc. (the "Company") sold to
The NetPlex Group ("NetPlex") and NetPlex purchased the assets
(other than cash and accounts receivable) related to the
Company's retail and store systems consulting division (the
"Consulting Division"), generally including technical consulting
services and solutions business, which provides technical
consulting services and solutions to the retail and distribution
industries. Such assets consist primarily of furniture and
fixtures, computer desktop and laptop hardware configurations
along with the associated software required on such computers,
and certain internally developed software used in the retail
consulting business, known more specifically as Retail Services
Application (Trademark) "RSA". NetPlex also acquired the rights to use the
name "Applied Intelligence Group", and CHAINLINK (Registration mark).
The Company's CHAINLINK software was licensed to Netplex under a Software
Remarketing and Reselling Agreement dated September 1, 1998. The
general terms and conditions of the license agreement are
discussed below. The assets and operations of the Company's
network services, including viaLinkr and ijob, were retained by
the Company. viaLink develops, markets and implements
proprietary software products, information content and related
services to facilitate electronic commerce. ijob provides an
internet based solution job referral and candidate evaluation
service for both employers and employees. The Consulting
Division Sale was consummated on October 16, 1998; however, the
effective date of the Consulting Division Sale was September
1, 1998, for accounting and other business purposes (the
"Effective Date").
At Closing, Netplex paid to the Company (i) $3,000,000, less
certain other payments disbursed from the escrow funds directly
to others for fees and expenses in connection with the Consulting
Division Sale, as more fully described below, in immediately
available funds and (ii) 643,770 shares of Netplex Class B
Preferred Stock (the "Netplex Preferred Stock"), each of which
will be convertible into one share of common stock, $.001 par
value, of Netplex (the "Netplex Common Stock"). As of October
22, 1998, the closing sale price of the Netplex Common Stock as
reported on the Nasdaq SmallCap Market was $1.188.
Class B Preferred Stock
The Class B Preferred Stock possess all such rights and
privileges that are afforded to preferred stock by the New York
Business Corporation Law in the absence of any express grant or
limitation of rights or privileges provided in the Certificate of
Incorporation of Netplex Group. The designations and the
preferences, conversions and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and
terms and conditions of the shares of the Class B Preferred Stock
as set forth in the Certificate of Incorporation are summarized
as follows: (i) Voting Rights. Holders of the Class B Preferred
Stock do not have any voting rights other than as provided by
law: (ii) Liquidation Rights. In the event of any liquidation,
dissolution or winding-up of the affairs of Netplex Group, and
before any distribution or payments are made to the holders of
the Common Stock and any other class of stock other than the
Class A Preferred Stock, holders of the Class B Preferred Stock
will be entitled to receive a liquidating distribution of $3.50
per share plus accumulated and unpaid dividends before any
distribution of assets will be made to holders of Common Stock or
any other class of stock or the amount the holders of the Class B
Preferred Stock would receive if the Class B Preferred Stock were
converted to Netplex Group Common Stock; (iii) Conversion
Privileges. Each share of Class B Preferred Stock is
convertible, at such holder's option, into one share of Netplex
Group Common Stock at any time, subject to customary adjustments
to prevent dilution upon the occurrence of certain future events.
Netplex Group is obligated at all times to reserve and keep
available, free from preemptive rights, unissued or treasury
shares of Netplex Group Common Stock sufficient to effect the
conversion of all the issued and outstanding shares of Class B
Preferred Stock.
Furthermore, in connection with the Consulting Division Sale
and as a condition of the Asset Acquisition Agreement, the
Company and Netplex Group have entered into an Earn-out Agreement
which will require NetPlex Group to operate the Consulting
Division in a manner that will give the Company the opportunity
to receive additional cash consideration from Netplex Group and
Netplex Group Preferred Stock. Under the Earn-out Agreement,
during each of the seven (7) calendar quarters beginning with the
quarter ending September 30, 1998 and ending March 31, 2000
("Earn-out Period"), Netplex Group will pay the Company 50% of
the Net Profit, as defined below, earned by the Consulting
Division as operated by Netplex. The cumulative, maximum cash
amount that the Company may receive under the Earn-out Agreement
is $1,5000,000. For purposes of determining the amount to be
paid under the Earn-out Agreement, "Net Profit" will be
calculated based on the earnings of the Consulting Division
before interest, taxes, depreciation and amortization.
Under the terms of the Earn-out Agreement, if the aggregate
Net Profit of the Consulting Division for the ten (10) quarters
beginning with the quarter ending September 30, 1998 and ending
December 31, 2000, exceeds $5,000,000 (the "Net Profit
Threshold"), the Company may become entitled to receive up to
643,770 additional shares of Netplex Group Preferred Stock. For
purposes of determining the amount of additional Netplex Group
Preferred Stock that may be issued pursuant to the Earn-out
Agreement, the Net Profit for the period commencing September 1,
1998 and ending December 31, 2000 will be limited to $9,000,000.
In the event the aggregate Net Profit during such period is less
than $5,000,000, the Company will not be entitled to receive any
additional shares of Netplex Group Preferred Stock. In the event
the Net Profit Threshold is attained, the number of additional
shares of Netplex Group Preferred Stock that the Company will be
entitled to receive will be determined on or before March 1, 2001
by multiplying the number of shares of Netplex Group Preferred
Stock initially received by the Company and that have not been
converted to Netplex Group Common Stock on or before December 31,
1999, by the quotient of the difference between $9,000,000 (less
$5,000,000) and the Net Profit of the Consulting Division for the
period ending December 31, 2000 divided by $4,000,000. For
example only, if the Consulting Division were to earn a Net
Profit of $9,000,000 (less $5,000,000) during the period ending
December 31, 2000, the Company will be entitled to receive one
additional share of Netplex Group Preferred Stock for each share
of Netplex Group Preferred Stock that has not been converted to
Netplex Common Stock and sold on or before December 31, 2000. By
further example, if the Consulting Division earns a Net Profit of
$7,500,000 (less $5,000,000) during the period ending December
31, 2000, the Company will be entitled to receive an additional
.625 share of Netplex Group Preferred Stock for each share of
Netplex Group Preferred Stock initially received by the Company
that was not converted to Netplex Common Stock and no longer owned
by the Company prior to December 31, 2000.
There is no public market for the Netplex Preferred Stock
and it is anticipated that a market will not develop; although as
mentioned above, each share of the Netplex Preferred Stock is
convertible, at the option of the Company, into Netplex Common
Stock on a share-for-share basis. However, in the event the
Company elects to convert all or any portion of the Netplex
Preferred Stock to Netplex Common Stock prior to December 31,
2000, for any reason, including the need for additional working
capital or reduction of borrowings, the number of additional
shares of Netplex Preferred Stock that the Company may become
entitled to receive under the Earn-out Agreement will be reduced
or fully eliminated if all shares of the Netplex Preferred Stock
have been converted to Netplex Common Stock and sold. As long as
the Company owns the NetPlex Common Stock, it will be entitled to
the additional stock compensation according to the formula above.
Under the terms of the Software Remarketing and Reselling
Agreement, the Company has granted to NetPlex the nonexclusive,
nontransferable license to use, copy and distribute throughout
the world the software product of the Company known as CHAINLINK
(the "Licensed Software"), the documentation, and to modify the
Licensed Software and Documentation and to create derivative
works of the Licensed Software. The term of this agreement is
from September 1, 1998 through December 31, 2003, unless earlier
terminated pursuant to the terms of the agreement. Generally,
NetPlex shall pay a fee of $2,500 per sublicense in excess of 100
sublicenses sold by NetPlex each year.
Under the terms of the Sublease dated September 1, 1998,
approved by the lessor on September 30, 1998, NetPlex will pay to
the Company an annual minimum rent for the subleased premises as
defined in the agreement, an amount equal to an initial
rate of 61% of the annual rent payment required under the original
lease with the Company's lessor, (the "Main Lease"). Such initial rate of
61% is equal to NetPlex's proportionate share of leasable space, which is
subject to increase under the terms of the Sublease. The Sublease
is generally subject to the same terms and conditions of the Main Lease.
Under the terms of the Administrative Services Agreement
dated August 31, 1998, whereby the Company is providing certain
administrative services to NetPlex, NetPlex will pay to the
Company the agreed upon amounts for services as defined in the
agreement, including receptionist, telephone, long distance
services, copier, building support and maintenance, LAN support,
Internet connectivity, payroll and other services.
In connection with the Consulting Division Sale and in
accordance with the Acquisition Agreement, the Company has
assigned and transferred all of its rights in the name, "Applied
Intelligence Group" to The Netplex Group, which required
amendment of the Certificate of Incorporation of the Company (the
"Name Change Amendment"). On September 4, 1998, the Board of
Directors unanimously approved the Amendment to the Certificate
of Incorporation, and upon the final closing on October 16, 1998
following execution of the Shareholder Consent approving the Name
Change Amendment, immediately made a proper filing with the
Secretary of State of the State of Oklahoma, and changed the name
of the Company to "The viaLink Company" effective October 19,
1998.
Fees and Expenses
Each of the Company and Netplex paid its own costs and
expenses incurred in connection with the sale or purchase of the
Consulting Division. Upon consummation of the Consulting
Division Sale, all of the expenses of the Company associated the
Consulting Division Sale will be paid from proceeds of the
Consulting Division Sale. In addition, on June 11, 1998, the
Company agreed to pay at closing of the Consulting Division Sale
to Ampton Investments, Inc. an amount equal to 3% of the purchase
price of the Consulting Division ($120,000) for the introduction
of the Company to Netplex. Pursuant to subsequent negotiations
and agreement, the Company and Ampton Investments agreed to a one
time fee of $175,000 in full consideration of all amounts due
Ampton Investments regarding the sale of the Consulting Division.
In addition, the Company agreed to pay Lewis B. Kilbourne Ph.D. a
fee of $30,000 for his services in consummating the Consulting
Division Sale. The additional expenses incurred by the Company
in connection with the Consulting Division Sale, including filing
fees, printing and mailing expenses, fairness opinion, and legal
and accounting fees and expenses, were approximately $185,000.
The net cash proceeds of the Consulting Division Sale
received by the Company, without giving effect to any additional
amounts that the Company may become entitled to receive under the
Earn-out Agreement or obtained from resale of the Netplex Group
Preferred Stock or Netplex Group Common Stock, was $1,851,731,
after payment from the escrow of proceeds due back to NetPlex
under the terms and conditions of the Asset Acquisition Agreement
to comply with the Effective Date of September 1, 1998, after
payment of the amount due Ampton Investments, after payment to
legal counsel for fees and expenses incurred by the Company due
to the Consulting Division Sale, and after payment of long-term
debt and accrued interest to the commercial lender to the
Company. Other fees and expenses of the transaction are
estimated to be $90,000 for other fairness opinion fees, legal,
accounting and printing charges. Upon receipt of the net
proceeds, the Company repaid all outstanding Shareholder notes
and accrued interest totaling $565,094. Pending use, the net
proceeds are invested by the Company in investment grade, short-
term, interest-bearing securities.
ITEM 5. OTHER EVENTS
Amendments to the Stock Option Plans
1995 Stock Option Plan. The Applied Intelligence Group,
Inc. 1995 Stock Option Plan (the "1995 Stock Option Plan")
provides that non-qualified or non-incentive stock options ("NSO
Options") may only be granted to key management employees,
directors, key professional employees, and key professional non-
employee service providers of the Company. Further, the Plan
provides that NSO Options are exercisable only during the period
the holder thereof is employed by the Company and for a period of
three months following termination of the holder's employment
with the Company. Accordingly, unless NSO Options are exercised
within three months following termination of the option holder's
employment with the Company, the NSO Options will expire.
In connection with the Consulting Division Sale, most of the
Consulting Division employees became employees of Netplex Group
and, accordingly, have terminated their employment with the
Company. Therefore, unless the NSO Options held by such
employees are exercised within three months following their
employment terminations, such NSO Options will expire. The Board
unanimously approved the 1995 Plan Amendment on September 4,
1998. The Stock Option Plan Amendment, approved by a majority
vote of the shareholders of the Company on October 16, 1998, (A)
permits NSO Options to be granted to non-employees and permit the
option holders to exercise such stock options through the end of
applicable option period without requiring continued employment
with the Company as a condition of exercise and (B) increases the
number of shares of common stock, $.001 par value per share of
the Company (the "Common Stock") authorized and reserved for
issuance under the 1995 Stock Option Plan from 300,000 to 800,000
("1995 Plan Amendment"). Immediately after execution of the
Shareholder Consent, the 1995 Plan Amendment became effective on
September 1, 1998. A copy of the 1995 Plan Amendment is fully
set forth in the Shareholder Consent as Exhibit 10.54 to this
Report.
1998 Non-Qualified Stock Option Plan. The Applied
Intelligence Group, Inc. 1998 Non-Qualified Stock Option Plan
(the "1998 Non-Qualified Stock Option Plan") provides that non-
qualified stock options and stock appreciation rights may only be
granted to directors, executive officers, key employees and
independent contractors and consultants of the Company. On
September 4, 1998, the Board of Directors unanimously approved
the 1998 Plan Amendment to permit the grant of non-qualified
stock options and stock appreciation rights to any employee of
the Company, and not solely to "key" employees and to increase
the number of shares of Common Stock authorized and reserved for
issuance under the 1998 Stock Option Plan from 500,000 to
800,000. The Stock Option Plan Amendment was approved by a
majority vote of the shareholders of the Company on October 16,
1998. Immediately after execution of the Shareholder Consent,
the 1998 Plan Amendment became effective on September 1, 1998. A
copy of the 1998 Plan Amendment fully set forth in the
Shareholder Consent as Exhibit 10.54 to this Report.
Name Change to The viaLink Company
Effective with the closing of the transaction described
above, the Company filed with the Secretary of State in Oklahoma,
an amendment to change the name of the Company to "The viaLink
Company". Such amendment became effective on October 19, 1998.
Resignation and Election of Officers of The viaLink Company
Effective with the transaction, Mr. Robert Barcum resigned
as President and Chief Executive Officer, but remains as a
director and Chairman of the Board of the Company. Also, Mr.
David North resigned as Vice President of Consulting and Mr.
Larry Davenport resigned as Vice President of Marketing and Sales
of the Company. Mssrs. Barcum, North and Davenport have been
hired as officers of the consulting division of The NetPlex
Group, Inc.
Dr. Lewis Kilbourne, an outside director, was elected acting
Chief Executive Officer of The viaLink Company, and remains a
director of the Company. Mr. Robert Baker, a director, was
elected President and Chief Operating Officer of the Company and
also remains a director. The Company is actively seeking to add
an additional outside director.
The attached press release may contain forward-looking
information. Readers are cautioned that such information involves
risks and uncertainties, including the possibility that events
may occur which impair the Company's future financial results or
preclude completion of future acquisitions by the Company. A copy
of the press release is attached hereto as Exhibit 99.3 and is
hereby incorporated by reference.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial statements of businesses acquired - Not applicable
(b) Pro forma financial information - Not applicable
(c) Exhibits
Exhibit 3.3 Third Amendment to Certificate of Incorporation of
Applied Intelligence Group, Inc.*
Exhibit 10.48 Asset Acquisition Agreement, dated August 31, 1998*
Exhibit 10.49 First Amendment to Asset Acquisition Agreement dated
September 9, 1998*
Exhibit 10.50 Earn-out Agreement, dated September 30, 1998*
Exhibit 10.51 Administrative Services Agreement, dated August 31, 1998
Exhibit 10.52 Sublease between Applied Intelligence Group, Inc. and
The NetPlex Group, Inc.
Exhibit 10.53 Software Remarketing and Reselling Agreement, with an
effective date of September 1, 1998
Exhibit 10.54 Consent To Action In Lieu Of A Meeting Of The
Shareholders of Applied Intelligence Group, Inc.
Exhibit 99.3 Press Release dated October 23, 1998
* Incorporated by reference to Definitive 14-C Information
Statement filed with the Securities and Exchange Commission.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED HEREUNTO DULY AUTHORIZED.
The viaLink Company
(Registrant)
Date: October 27, 1998 By: _ /s/John M. Duck_________
John M. Duck
VICE PRESIDENT & CHIEF
FINANCIAL OFFICER
Exhibit 10.51
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT is entered into as of
August 31, 1998 ("Services Agreement") by and among APPLIED
INTELLIGENCE GROUP, INC., 13800 Benson Road, Edmond, Oklahoma
73013-6417 ("Seller"), and THE NETPLEX GROUP, INC., a New York
corporation, 8260 Greensboro Drive, Fifth Floor, McLean, Virginia
22102 ("Netplex")
WHEREAS Netplex is acquiring Assets of the Business of Seller, as
such terms are defined in the Asset Acquisition Agreement, as
amended ("Asset Agreement") between Seller and Netplex;
WHEREAS Netplex desires to operate the Business at the Premises
of Seller; and
WHEREAS the parties agree that Seller shall make available to
Netplex, and Netplex shall compensate Seller for, certain
administrative services as hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the
agreements herein contained, the parties hereto agree as follows:
1. Definitions:
1.1. "Premises" shall mean the property located at 13800 Benson
Road, Edmond, Oklahoma.
1.2. "Services" shall be the administrative services identified
on Schedule A which is attached hereto and incorporated herein by
reference.
1.3. "Term" shall mean the period of time from the Effective Date
until December 31, 2001, unless earlier terminated pursuant to
the terms of this Services Agreement.
1.4. "Effective Date" shall be September 1, 1998.
1.5. "Sublease" shall mean the Sublease between the parties
hereto executed of even date herewith for the subleasing of a
portion of the Premises by Netplex from Seller.
1.6. "Netplex's Proportionate Share" shall have the same meaning
as given such term in said Sublease.
1.7. "Asset Acquisition Agreement" shall refer to the Asset
Acquisition Agreement executed between the parties hereto on
August 31, 1998 and any amendments thereto.
1.8. "Earn-Out Agreement" shall refer to the Earn-Out Agreement
executed between the parties hereto on September 30, 1998 and
any amendments thereto.
2. Services Provided:
2.1. Subject to the terms of this Services Agreement, during the
Term hereof:
2.1.1. Seller shall provide to Netplex the Services identified
on Schedule A hereto at the times set forth thereon. Seller shall
provide such Services in a professional, business-like manner
consistent with its past practices.
2.1.2. Except as otherwise set forth in this Services
Agreement, Seller shall not be obligated to increase the type of
Services, the frequency of any of the Services, or the terms or
conditions of any of the Services unless Seller and Netplex agree
to the cost and scope of the same.
2.1.3. Subject to the terms, covenants and conditions of this
Services Agreement, in the event that Netplex, at any time(s)
pursuant to the Sublease, increases the amount of space in the
Premises which it has the right to occupy to an amount less than
all of the Premises ("Additional Space"), Seller, subject to the
terms of said Sublease, shall provide to Netplex the same type of
Services for such Additional Space which Seller was providing to
Netplex for its then Existing Space.
2.1.4. Neither Netplex nor Seller shall interfere with the use
of the Services by the other party.
2.1.5. Notwithstanding anything to the contrary in this
Services Agreement, Seller may discontinue offering any of the
Services on sixty (60) days notice to Netplex.
2.1.6. Notwithstanding anything to the contrary in this
Services Agreement, Seller may upgrade, modify or otherwise
change the equipment, software, carrier, supplier or other means
used to provide the Services so long as the nature and quality of
the Services provided pursuant hereto remains substantially
similar to those originally contracted for by Netplex pursuant to
this Services Agreement. Seller shall use its best efforts to
notify Netplex ninety (90) days in advance of any material
changes in the Services. In the event that Seller upgrades,
modifies or otherwise changes the Services as allowed by this
Section, for purposes of determining the amount due Seller for
the Services for the purposes of this Services Agreement, the
cost of the same shall be deemed as an actual cost of Seller in
the month that the cost(s) for such upgrade, modification or
change is incurred by Seller. Notwithstanding anything to the
contrary herein, if Netplex requests an upgrade, modification or
change on hardware, software or any other type of equipment owned
by Netplex and which is solely used by Netplex but for which
services are provided by Seller pursuant to this Services
Agreement, Netplex shall solely bear the total cost of any such
upgrade, modification or change; provided however, to the extent
that the labor portion for the installation of any such equipment
is accomplished within the labor costs of the monthly charges
already paid for by Netplex to Seller for the time period in
which the same is installed, no additional cost shall be incurred
by Netplex; and provided further, if any additional labor on
Seller's part is needed to complete the installation, Netplex
shall pay for the same at Seller's then current rates.
2.1.7. Notwithstanding anything to the contrary in this
Services Agreement, Netplex may discontinue the use of any of the
Services (i) upon sixty (60) days prior written notice to the
Seller or (ii) at the end of the notice period which Seller must
give to any third party provider who is providing the Services
after Netplex gives written notice to Seller of its decision to
terminate such Services, whichever is longer. In the event that
Netplex discontinues any of the Services and such discontinuation
results in the imposition of any penalty or liquidated damages
("Damages") to Seller from the third party providing such
Service, Netplex shall reimburse Seller for all of such Damages.
Seller, upon request from Netplex, shall provide to Netplex such
documentation as is reasonably necessary to allow Netplex (i) to
determine what notice must by given to a third party providing
any of the Services and (ii) to determine what, if any, penalty
or liquidated damages provision may be applicable to a particular
Service.
2.1.8. Notwithstanding anything to the Contrary in this
Services Agreement, in the event that Netplex exercises its right
under the Sublease to occupy all of the Premises, Seller, as of
the date upon which Netplex has the right to occupy all of the
Premises, shall not be obligated to offer or otherwise provide
any Services to Netplex.
2.1.9. Seller shall allow Netplex to use the equipment located
in the Netplex/AIG Space identified in the Sublease as of
September 30, 1998 ("Loaned Equipment"). The parties agree and
understand that said Loaned Equipment is currently under lease
from one or more third parties, and that said leases also cover
equipment which is not part of the Loaned Equipment. Netplex
shall not permanently remove the Loaned Equipment from the Leased
Premises as defined in the Sublease without the prior written
consent of Seller. Seller shall keep said lease payments on the
Loaned Equipment current. At the end of each lease covering any
or all of the Loaned Equipment, Seller shall exercise its option
to purchase the same and shall transfer title to such portion of
the Loaned Equipment acquired thereby to Netplex without further
cost; provided, that prior to such time, no ownership interest to
said Loaned Equipment shall pass to Netplex. On or before
Closing as defined in the Asset Agreement, Seller shall provide
to Netplex a list of the Loaned Equipment.
2.2. During the Term of this Services Agreement, Netplex shall
provide Seller the services set forth on Schedule A-1 hereto.
3. Payment for Services:
3.1. For the Services rendered during the Term of this Services
Agreement, Netplex, subject to the terms of this Services
Agreement, shall pay Seller the amount derived from Monthly
Netplex Cost Formula set forth on Schedule A for each of the
Services then provided pursuant to this Services Agreement. Any
sums due Netplex for services rendered to Seller pursuant to
Schedule A-1 shall be credited by Seller to the amount due to
Seller hereunder from Netplex. Moreover, if any deposit is
required after the commencement of this Services Agreement to be
paid by Seller in relation to providing any of the Services,
Netplex shall pay Seller its then current Proportionate Share of
the same. Upon discontinuation of the Service(s) for which the
deposit was paid or upon termination of this Services Agreement,
whichever first occurs, Seller shall refund to Netplex its
Proportionate Share of such deposit without interest.
3.2. Said payment from Netplex shall be due within twenty (20)
days of the date that Netplex receives the invoice(s) for
Services. Seller shall provide Netplex with such reasonable
documentation as requested by Netplex to support the invoiced
charges for Services. An initial payment of fifteen thousand
dollars ($15,000) ("Prepayment") shall be made upon execution of
this Services Agreement by Netplex as a prepayment for the first
month's estimated Services. Such Prepayment shall be applied
against future invoices received by Netplex from Seller.
3.3. Netplex shall pay Seller interest on any amount not paid
when due pursuant to this Services Agreement at the rate of
thirteen percent (13%) per year from the date any such payment
was due until such amount is paid in full.
3.4. If the actions of Netplex or Netplex's requested changes in
any Service cause the cost of any of the Services to increase,
Netplex, in addition to the amount(s) set forth on Schedule A,
shall be solely liable for all of such increase in cost.
4. Insurance: Each party shall at all times during the term of
this Services Agreement maintain (i) comprehensive general
liability insurance with coverage limits of at least one million
dollars ($1,000,000) per occurrence and (ii) workers compensation
and employers liability insurance. Such policies of insurance,
to the extent allowable by Oklahoma law, shall contain a waiver
of subrogation against the other party hereto.
5. Termination:
5.1. This Services Agreement may be terminated by Seller if:
5.1.1. Netplex fails to make any payment due hereunder within
fifteen (15) days after the due date thereof
5.1.2. Netplex breaches any other term or condition of this
Services Agreement and such breach is not remedied by Netplex
within thirty (30) days of receipt of Notice thereof from Seller
detailing the nature of the breach,
5.1.3. Netplex enters into bankruptcy, whether voluntarily or
involuntarily, or is declared or adjudged insolvent or makes a
general assignment for the benefit of creditors, or
5.1.4. Netplex breaches the Asset Agreement, the Sublease
and/or the Earn-Out Agreement between Netplex and Seller and
fails to cure such breach(es) within the cure period, if any,
provided in the applicable agreement.
5.1.5. Seller ceases to conduct its business operations at the
Premises or has provided Netplex with sixty (60) days prior
notice of the termination of this Services Agreement.
5.2. This Services Agreement may be terminated by Netplex if:
5.2.1. Seller enters into bankruptcy, whether voluntarily or
involuntarily, or is declared or adjudged insolvent or makes a
general assignment for the benefit of creditors, or
5.2.2. Seller breaches any term or condition of this Services
Agreement and such breach is not remedied by Seller within thirty
(30) days of receipt of Notice thereof from Netplex detailing the
nature of the breach.
5.2.3. Seller breaches the Asset Agreement and/or the Sublease
between Netplex and Seller and fails to cure such breach(es)
within the cure period, if any, provided in the applicable
agreement.
6. Arbitration: Any controversy or claim arising out of or
relating to this Services Agreement, or its breach, or its
validity or interpretation, except claims involving necessary
third parties who refuse to participate or claims seeking
injunctive or equitable relief, shall be settled by binding
arbitration in accordance with the then current Commercial
Arbitration Rules of the American Arbitration Association ("AAA")
subject, however, to the following:
6.1. The location for the arbitration shall be at a location in
Oklahoma County, Oklahoma agreed to by the parties; provided,
however, in the event that the parties cannot agree on such
location, the arbitration shall be at a location in Oklahoma
County, Oklahoma designated by the AAA.
6.2. Such arbitration shall be heard and determined by an
arbitrator in accordance with the then current rules or
regulations of the AAA relating to commercial disputes. The
arbitrator shall be neutral and shall be selected by the parties;
provided however if they cannot agree upon such neutral
arbitrator, the arbitrator shall be appointed by the AAA. Such
neutral arbitrator shall be a person with experience in handling
disputes relating to the management and/or leasing of commercial
property.
6.3. The arbitration award shall be binding on the parties and
may be enforced in any court of competent jurisdiction.
7. Other Terms:
7.1. Remedies. The remedies provided in this Services Agreement
are exclusive.
7.2. Modification. Any change in the Services as permitted in
this Services Agreement shall be deemed an authorized
modification of this Services Agreement. No other modification
of this Services Agreement is permitted except with the written
consent of both parties.
7.3. Attorneys' fees. The prevailing party in any action to
enforce this Services Agreement, including any Arbitration under
Section 6 hereof, shall be entitled to recover from the other
party all of the prevailing party's costs incurred in such
action, including its reasonable attorneys' fees.
7.4. Choice of Law, Venue. This Services Agreement shall be
governed by Oklahoma law. Any action to enforce any provision of
this Services Agreement shall be brought only in a court of
appropriate jurisdiction located in the State of Oklahoma.
7.5. Integration. This Services Agreement constitutes the entire
agreement between the parties hereto on the subject matter hereof
and supercedes and replaces any prior or contemporaneous
agreement on said subject.
7.6. Binding, Assignment. This Services Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns, and no
other person or entity shall have any right (whether third party
beneficiary or otherwise) hereunder. This Services Agreement may
not be assigned by any party without the prior written consent of
the other party.
7.7. Waiver. Unless otherwise specifically agreed in writing to
the contrary: (a) the failure of any party at any time to
require performance by the other of any provision of this
Services Agreement shall not affect such party's right thereafter
to enforce the same; (b) no waiver by any party of any default by
any other shall be valid unless in writing and acknowledged by an
authorized representative of the nondefaulting party, and no such
waiver shall be taken or held to be a waiver by such party of any
other preceding or subsequent default; and (c) no extension of
time granted by any party for the performance of any obligation
or act by any other party shall be deemed to be an extension of
time for the performance of any other obligation or act
hereunder.
7.8. Notices. All notices demands and other communications
pertaining to this Services Agreement ("Notices") shall be in
writing addressed as follows:
If to Seller:
Robert N. Baker, Vice President
The viaLink Company
13800 Benson Road
Edmond, OK 73013-6417
with a copy to:
Richard M. Klinge, Esq.
Richard M. Klinge & Associates, P.C.
228 Robert S. Kerr, Suite 940
Oklahoma City, OK 73102
If to Netplex:
The Netplex Group, Inc.
Attention: Gene F. Zaino, President
8260 Greensboro Drive, 5th Floor
McLean, Virginia 22102
with a copy to:
Attn: Edward J. Walsh, Jr., Esq.
Vedder Price Kaufman & Day
22nd Floor
805 Third Avenue
New York, NY 10022
Notices shall be deemed given five (5) business days after being
mailed by certified or registered United States mail, postage
prepaid, return receipt requested, or on the first business day
after being sent, prepaid, by nationally recognized overnight
courier that issues a receipt or other confirmation of delivery
to the appropriate recipient of such Notice. Any party may
change the address to which Notices under this Services Agreement
are to be sent to it by giving written notice of a change of
address in the manner provided in this Services Agreement for
giving Notice.
7.9. Counterparts; Facsimile. This Services Agreement may be
signed in any number of counterparts with the same effect as if
the signature on each such counterpart were on the same
instrument. This Services Agreement and any counterparts may be
executed by facsimile with the same effect as if the signature
were an original.
7.10. Construction. The headings of the Sections of this
Services Agreement are for convenience only and in no way modify,
interpret or construe the meaning of specific provisions of this
Services Agreement.
7.11. Severability. In case any one or more of the
provisions contained in this Services Agreement should be held
invalid, illegal or unenforceable in any respect, the validity,
legality, and enforceability of the remaining provisions will not
in any way be affected or impaired. Any illegal or unenforceable
term shall be deemed to be void and of no force and effect only
to the minimum extent necessary to bring such term within the
provisions of applicable Laws and such term, as so modified, and
the balance of this Services Agreement shall then be fully
enforceable.
7.12. Neither party may assign or sublease its rights or
obligations under this Services Agreement without the prior
written consent of the other party, which consent shall not be
unreasonably withheld. The use of third parties to provide the
Services under this Services Agreement shall not be deemed a
violation of this Section.
7.13. Any arbitration arising out of this Services Agreement
must be commenced within one (1) year from the date upon which
such cause of action shall have first accrued. Any other actions
arising out of this Services Agreement to the extent that they
are excluded from the provisions of Section 6 of this Services
Agreement must be commenced within the applicable Statute of
Limitations prescribed by law.
7.14. Seller and Netplex are strictly independent
contractors. Neither party has the right to bind the other in
any manner, and nothing in this Services Agreement shall be
interpreted to make either party the agent or legal
representative of the other or to make the parties joint
venturers or partners, nor shall either party represent or imply
to other persons or entities that any such relationship exists.
7.15. Notwithstanding anything to the contrary in this
Services Agreement, Seller shall not be responsible for failure
of performance due to any cause(s) beyond its reasonable control,
including, but not limited to, accidents, acts of God, labor
disputes, or the actions of any government agency or common
carrier or other third party over whom Seller has no reasonable
control.
7.16. Netplex and Seller shall each keep confidential and
not, directly or indirectly, reveal, report, publish, disclose or
transfer any confidential information ("Confidential
Information") obtained by it with respect to the other in
connection with this Services Agreement. Notwithstanding the
foregoing limitation, neither party shall be required to keep
confidential or return any Confidential Information that (a) is
known or available through other lawful sources, not bound by a
confidentiality agreement with the disclosing party, (b) is or
becomes publicly known or generally known in the industry through
no fault of the receiving party or its agents, (c) is required to
be disclosed pursuant to Law (provided the other parties are
given reasonable prior notice), or (d) is developed by the
receiving party independently of the disclosure by the disclosing
party. This section 7.16 shall survive the termination of this
Services Agreement.
7.17. The parties agree and acknowledge that they have read
this Services Agreement. 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 Services Agreement.
7.18. All of Sections 3 and 6 and Subsections 7.1, 7.2, 7.3,
7.4, 7.5, 7.6, 7.7, 7.10, 7.11, 7.13, 7.15, 7.16 and this 7.18
shall survive the termination of this Services Agreement.
SIGNATURE PAGE FOLLOWS
WHEREFORE, the parties have executed this Services Agreement
as of the date first above written.
THE NETPLEX GROUP, INC.
By: /s/Gene Zaino_______________
Name: Gene Zaino
Title: President
APPLIED INTELLIGENCE GROUP, INC.
By: /s/Robert L. Barcum
Name: Robert L. Barcum
Title: President and CEO
Administrative Services Agreement Schedule A.
SERVICE DESCRIPTION OF SELLER'S COST NETPLEX Times of
OFFERED SERVICE OFFERED MONTHLY COST Service
FORMULA
Recept Includes a person to Seller's An amount viaLink
ionist provide typical actual equal to the regular
receptionist monthly cost product of business
services. These incurred for Netplex's then hours as
services include the one employee current establish
greeting of guests capable of Proportionate ed from
and customers, providing Share time to
answering the main this Service, multiplied by time by
phone system, including Seller's Cost. The
transferring calls without viaLink
and sending and limitation Company.
receiving faxes. salary and
Netplex and Seller, all benefits
during the term of provided to
the Administrative the person
Services Agreement, providing
shall, at no cost to this Service
the other, split the plus ten
responsibility of percent (10%)
providing a backup thereof.
person to cover
breaks and lunch
periods for the
receptionist provided
by Seller.
Teleph This services Seller's An amount 24 hours
one includes desktop actual equal to the a day, 7
phones (one for each monthly cost product of days a
office and lab space) incurred for Netplex's then week.
connected to a phone providing current
switch, and local this Service Proportionate
phone services. plus ten Share
percent (10%) multiplied by
of the total Seller's Cost.
thereof.
Long This services Seller's An amount 24 hours
Distan includes access and actual equal to the a day, 7
ce use of long distance monthly cost actual long days a
Phone service. incurred for distance week.
Access providing charges
this Service. attributable
to or
otherwise
incurred by
Netplex which
are billed to
Seller by the
long distance
carrier(s).
Copier This service includes Seller's An amount 24 hours
the use of a working actual equal to the a day, 7
copier similar to monthly cost product of days a
those present at the incurred for Netplex's then week.
Premises on September providing current
1, 1998 and a paper this Service Proportionate
supply on each floor plus ten Share
of the Premises. percent (10%) multiplied by
of the total Seller's Cost.
thereof.
Buildi This service only Seller's An amount N/A
ng includes Honeywell actual equal to the
Suppor security system, monthly cost product of
t Platinum software incurred for Netplex's then
maintenance, Personal providing current
Expense Reporter this Service Proportionate
software maintenance, plus ten Share
Executive Coffee percent (10%) multiplied by
Services and of the total Seller's Cost.
Executive plant thereof.
watering service.
Connec This service includes Seller's 40% of 24 hours
tivity desktop connections actual Seller's Cost a day, 7
(one for each office monthly cost plus $100 per days a
and multiple for each incurred for month for week
lab) to a LAN that providing the email and
connects to Netplex Internet hosting plus
servers and connectivity $500 per month
connectivity to the plus (10%) of for uses of
Internet. the total all the
thereof. Desktop
connections
(LAN and
routers).
LAN This service includes Seller's 50% of 24 hours
Support LAN administration actual Seller's Cost. a day, 7
and LAN support for monthly cost days a
Netplex owned incurred for week.
servers, but does not one LAN
include any desktop support staff
support. The level which is
of support during capable of
business hours is providing
what can be expected this Service,
by one-half time LAN
support including
person. The level of without
support during non- limitation
business hours is a 2 salary and
hour response time all benefits
and best continuing provided to
efforts to resolve the person(s)
LAN problems. providing
this Service
plus ten
percent (10%)
thereof.
Use of See Section 2.1.9 of Actual lease Seller's Cost. N/A
Loaned the Administrative payments
Equipm Services Agreement. applicable to
ent such Loaned
Equipment.
Other Other Services as As agreed in As agreed in As agreed
agreed in writing by writing by writing by in
the parties Seller and Seller and writing
Netplex. Netplex. by Seller
and
Netplex.
SCHEDULE A-1
1. During the Term of the Administrative Services Agreement,
Netplex shall process Seller's payroll. Seller shall pay Netplex
the sum of five hundred dollars ($500.00) per month for each
month Netplex provides such services to Seller. Seller may
terminate this service on thirty (30) days notice to Netplex.
2. During the Term of the Administrative Services Agreement,
Netplex shall provide Seller logging and dispatch services
through Netplex's Customer Support Network during the same times
that it supplies Customer Support Network services for the
customers of its AIG division in Oklahoma City, Oklahoma. Seller
shall pay Netplex the sum of two hundred dollars ($200.00) per
month for each month Netplex provides such services to Seller.
Seller may terminate this service on thirty (30) days notice to
Netplex.
Exhibit 10.52
SUBLEASE
This Sublease is entered into this _____ day of September,
1998 by and between Applied Intelligence Group, Inc., 13800
Benson Road, Edmond, Oklahoma 73013, an Oklahoma corporation
("Seller") and The Netplex Group, Inc., 8260 Greensboro Drive,
Fifth Floor, McLean, Virginia 22102, a New York corporation
("Netplex").
RECITALS
Whereas, Seller is selling to Netplex the assets of its
information technology services business pursuant to an Asset
Acquisition Agreement executed between the parties on August 31,
1998; and
Whereas Seller is lessee of a building and land ("Leased
Premises") pursuant to a lease between Oklahoma Christian
Investment Corporation ("OCIC") entered into October 3, 1994, the
Amendment No. 1 thereto dated January 26, 1995, and the Amendment
No. 2 dated June 2, 1995, a copy of which is attached hereto as
Exhibit A (collectively hereinafter the "Main Lease") and
incorporated herein for reference purposes; and
Whereas, Seller desires to sublease to Netplex and Netplex
desires to sublet from Seller a portion of said Leased Premises.
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained the parties agree as follows:
ARTICLE I - Subleased Premises and Term
1.1 Subleased Premises
Seller hereby subleases to Netplex and Netplex subleases
from Seller that portion of the Leased Premises identified on
Exhibit B hereto identified as AIG/Netplex ("Subleased Premises")
for use by Netplex as offices, subject and subordinate, however,
in all respects to all of the terms, covenants, conditions and
provisions of the Main Lease. Seller also grants the right to
Netplex the right to jointly use during the term of this Sublease
with Seller the Common Area identified on said Exhibit B. The
parties agree that at execution of this Sublease, the Subleased
Premises represent sixty-one percent (61%) of the Leasable Area
(as hereinafter defined) of the Leased Premises, which percentage
is hereinafter referred to as "Netplex's Proportionate Share".
For purposes of this Sublease, the term "Leasable Area" shall be
defined as the sum of the AIG/Netplex Space shown on Exhibit B
hereto plus the total square footage of The viaLink Company Space
shown on said Exhibit B as the same may be amended from time to
time. For purposes of determining the Leasable Space, the Common
Areas space shown on Exhibit B shall not be considered in the
calculation. The Netplex Proportionate Share of the Leasable
Area at any given time during the Term of this Sublease is equal
to the quotient of the then current total square footage of the
AIG/Netplex space shown on Exhibit B hereto divided by the
Leasable Area.
1.2 Netplex Obligations
Netplex agrees to perform all obligations required to be
performed by Seller as "Tenant" under the Main Lease with respect
to the area comprising the Subleased Premises except to the
extent expressly modified by this Sublease and with the exception
of those provisions of the Main Lease set forth in Section 1.3
concerning the term, and Sections 2.1 through 2.6 of Article II
concerning the rent, additional rent and security deposit.
Netplex shall not perform any act which would cause a default by
Seller under the Main Lease.
1.3 Term
Subject to earlier termination or expiration pursuant to the
terms or conditions of this Sublease or as a matter of law, the
Term of this Sublease shall commence on the Closing of the Asset
Acquisition Agreement as such term is defined therein, and shall
end one day prior to the expiration of the present term of the
Main Lease, or, if this Sublease is extended by the mutual
agreement of Seller and Netplex, then one day prior to the date
of expiration of any such extended term. Notwithstanding
anything to the contrary herein, in the event that Closing (as
defined in the Asset Acquisition Agreement) does not occur, then
this Sublease shall be null and void, and all payments made by
Netplex to Seller hereunder shall be returned to Netplex. In the
event that the Main Lease is terminated for any reason, this
Sublease shall be automatically terminated.
ARTICLE II - Rental
2.1 Rental
Netplex covenants and agrees to pay, as annual minimum rent
for the Subleased Premises, its then current Proportionate Share
of the rent payable under Article 2.1 of the Main Lease as the
same is adjusted from time to time pursuant to the terms thereof.
Netplex agrees to pay to Seller said rent, in legal tender, to
Seller at the address indicated above or such other address as
may be authorized by notice from Seller to Netplex, in equal
monthly installments in advance on the first day of each calendar
month during the term hereof. Rent for any partial month
hereunder shall be pro-rated on a per diem basis and paid on the
first day of the following calendar month. Moreover, if Netplex
exercises its rights to expand the size of the Subleased
Premises, the Proportionate Share shall be adjusted to reflect
said expansion, and the payments due pursuant to this Section
shall be adjusted as of the date such expansion becomes
effective. The parties shall execute such documents as are
reasonably necessary to reflect the expansion of Netplex's space.
Additional Rent
Netplex shall pay its then current Proportionate Share of
increases in ad valorem taxes, insurance premiums and utility
costs payable by Tenant under the Main Lease pursuant to Articles
2.2, 2.3 and 2.4 of the Main Lease and the Landlord Funded Tenant
Improvements under said Amendment No. 2 to the Main Lease.
2.3 The provisions of Section 7.2 of the Main Lease shall apply
equally to payments due by Netplex to Seller pursuant to the
terms of this Sublease.
2.4 Upon the written request of OCIC, Netplex will pay the rent
and additional rent due under this sublease directly to OCIC.
ARTICLE III - OCIC's Approval
3.1 Sublease Contingent on Approval
This Sublease is not subject to and contingent upon the
approval of OCIC; provided however, Seller agrees to use its best
efforts to obtain OCIC's approval of this Sublease and Netplex
agrees to cooperate fully with all reasonable requests of Seller
and OCIC for information in connection with obtaining said
approval.
ARTICLE IV - Seller's Obligations
4.1 Main Lease
4.1.1 Seller covenants and agrees to perform in a timely
manner all obligations on its part to be performed under the
Main Lease.
4.1.2 Seller agrees to take no action to amend or modify
the Main Lease without the consent of Netplex, which consent
shall not be unreasonably withheld.
4.1.3 Seller agrees to notify Netplex promptly in writing of
any default on Seller's part or OCIC's part and to deliver
promptly to Netplex any and all notices of default received by
Seller from OCIC or notices of default delivered by Seller to
OCIC. In the event of a default by Seller or the receipt by
Seller of a notice of default from OCIC, Seller agrees that
Netplex may (i) make any payments required of Netplex under this
Sublease directly to OCIC and to offset such payments against any
rent due hereunder. In the event of a default by OCIC in the
performance of its obligations under the Main Lease, Seller
agrees, at its sole cost and expense to take such steps as are
necessary to compel performance including, but not limited to,
litigation against OCIC. In the event that Seller fails to
pursue such claim on a timely basis, Seller agrees that Netplex
may pursue such claim in its own name or in the name of Seller
against OCIC provided that such claim shall be prosecuted at
Seller's sole cost and expense, and that Seller shall indemnify
and hold Netplex harmless from any and all costs, losses and
expenses (including reasonable attorneys' fees and expenses)
which may arise out of or relate to such claim.
4.1.4 In the event that Seller's default under the Main Lease
arises out of or is as a result of the breach of this Sublease by
Netplex, then and in that event, Netplex shall defend, indemnify
and hold Seller harmless from and against any claims or losses
incurred by Seller as a result of any such breach of this
Sublease by Netplex.
4.2 Delivery, Possession, Quiet Enjoyment
Seller covenants and agrees to deliver the Subleased
Premises to Netplex AS IS no later than the commencement of the
Term of this Sublease. Subject to the terms, covenants and
conditions of this Sublease, including without limitation the
following Subsections, Seller agrees that so long as Netplex is
not in default in the performance of any covenant of this
Sublease, Netplex shall quietly enjoy the Subleased Premises, the
joint use of the common areas and parking areas in accordance
with this Sublease.
4.2.1 During the Term of this Sublease, Netplex shall not
remodel or install any telephone lines or computer cables on the
Subleased Premises or mount any external communications devices
on the roof of the Subleased Premises without the prior written,
consent of Seller. Moreover, in the event that Seller gives such
consent, Netplex's right to remodel the Subleased Premises shall
be subject to the terms and conditions of Section 4.3 of the Main
Lease.
4.2.2 During the term of this Sublease, Netplex shall not
have the right to assign this Sublease or to sublease any portion
of the Subleased Premises without the prior written consent of
Seller, which consent shall not be unreasonably withheld. Any
permission granted Netplex by Seller to sublease or to assign
this Sublease shall not relieve Netplex from liability for the
payment of rental or from the performance of any of the covenants
of this Sublease.
4.2.3 Netplex shall return the Subleased Premises at the
expiration or earlier termination of the Term hereof to Seller in
the same condition that Seller is required to return its Leased
Premises to OCIC pursuant to Section 4.7 of the Main Lease and
subject to the same exceptions contained therein.
4.2.4 Netplex shall abide by the terms of Section 4.6 as it
related to the Subleased Premises.
4.2.5 Netplex shall place all trash and refuse only in
containers provided for such, and Seller may clean up any trash
or reuse not so disposed of and charge the cot thereof to
Netplex.
4.2.6 Notwithstanding anything to the contrary in this
Sublease, Netplex acknowledges that its right to use the
Subleased Premises are subject to the provisions of Section 4.2.1
and , 4.2.2 of the Main Lease.
4.2.7 Netplex agrees to comply with the rules and regulations
promulgated from time to time by OCIC which affect the Subleased
Premises.
4.2.8 During the Term of this Sublease, Netplex shall carry,
at Netplex's expense, fire, extended coverage, vandalism and
malicious mischief, all risk with replacement cost endorsement
insurance for its furniture, trade fixtures, equipment, Leasehold
improvements, interior and exterior signs, interior or exterior
glass, and inventory. Netplex shall carry comprehensive general
liability insurance on the Subleased Premises, with limits of not
less that $1,000,000 combined single limit for bodily injury and
property damage, naming OCIC and Seller as additional named
insureds and providing certificates of insurance reflecting such.
Said certificates shall be furnished to OCIC and Seller prior to
the beginning of the Term of this Sublease and at least thirty
days prior to the expiration of the policy of insurance evidenced
thereby. All such policies shall provide for thirty days notice
to OCIC and Seller prior to cancellations and be so reflected on
the certificate(s) of insurance. The parties hereto agree that
each party hereby waives and releases and all claims, demands
against the other for damage to loss of any part of the Subleased
Premises or any of the contents and leasehold improvements
therein belonging to Netplex arising from perils insured against
ordinarily under standard fire and extended coverage, vandalism
and malicious mischief, all risk, insurance policies issued in
the state of Oklahoma whether such damage or loss is occasioned
by the negligence of the parties hereto, their agents, servants
and employees, or otherwise, and that all of the policies of
insurance written to insure buildings, improvement and contents
shall contain a proper provision, by endorsements or otherwise,
whereby the insurance carriers issuing her same shall acknowledge
the insured has so waived and released its right of recovery
against Seller and/or OCIC hereto, and shall waive the right of
subrogation which such carrier might otherwise have had against
Seller and/or OCIC, all without impairment or invalidation of
such insurance. Seller shall hold Netplex harmless against all
claims, judgments and demands of any person or persons whomsoever
on account of injuries or accidents occurring in, or about the
Subleased Premises resulting from willful or negligent acts or
omissions of Seller, Seller's employees, agents or
representatives, or the breach of any obligation of the Seller as
set out in this Sublease. Netplex shall hold Seller harmless
against all claims, judgments and demand of any person or
persons, whomsoever on account of any injuries or accidents
occurring on the Subleased Premised as a result of willful or
negligent acts or omissions of Netplex, Netplex's employees,
agents, or representatives, or the breach of any obligation of
Netplex as set out in this Sublease.
4.2.9 Netplex shall be bound by the terms and conditions of
Sections 6.1, 6.2, and 6.7 of the Main Lease. Section 6.2.1 of
the Main Lease shall not be applicable to Netplex.
4.2.6 Notwithstanding anything to the contrary in this
Sublease, Netplex takes the Sublease subject to the terms and
conditions of Sections 6.5 and 6.6 of the Main Lease.
4.2.7 The term of this Sublease is subject to the provisions
of Section 6.3 of the Main Lease.
4.2.8 Netplex takes this Sublease subject to the terms of
Section 7.9 of the Main Lease.
4.2.9 Netplex's Default. the following events will be deemed
to be an event(s) of default by Netplex under this Sublease:
4.2.9.1 In the event Netplex should default in payment of
rental, Seller shall give Netplex written notice of such default
by certified Mail and Netplex shall have Ten (10) days from the
date of receiving such notice to correct the same. Should
Netplex fail to correct such default in said period, Seller may,
in addition to all other rights available to Seller under the
laws of the State of Oklahoma, at its option, terminate this
Sublease.
4.2.9.2 Subject to the terms and conditions of Subsection
4.2.9.2.1 of this Sublease, in the event that Netplex should fail
to comply with any other provision of this Sublease, Seller shall
give Netplex written notice of such default by certified mail.
Such notice shall state with specificity the type and nature of
such default. Should such default continue to exist at the
expiration of Sixty (60) days after receipt of such notice, or
should Netplex not be proceeding with due diligence to correct
the same, in the case of a default which with due diligence could
not be cured within Sixty (60) days after receipt of such notice,
Seller shall then give Netplex second written notice by certified
mail, and five (5) days from the receipt of such second notice,
Seller may, in addition to all other rights and remedies
available to Seller under the laws of the State of Oklahoma, at
its option, terminate this Sublease if such default is not cured
with such five days. Should Netplex correct its default with the
time provided, then Netplex's rights hereunder shall be re-
established as though said default had not occurred.
4.2.9.2.1 Notwithstanding anything to the contrary in Subsection
4.2.9.2 of this Sublease, if Seller receives a notice of default
from OCIC under the Main Lease and such default arises out of a
default by Netplex under this Sublease, then and in that event,
Netplex shall only have the time to cure such default that Seller
has to cure the same under the terms and conditions of the Main
Lease.
4.3 Exclusive Expansion Option
Seller covenants and agrees to notify Netplex on or before
the date which is twelve (12) months prior to the end of the
sixtieth (60th) month of the Term of the Main Lease, whether
Seller intends to exercise its Exclusive Expansion Option, as
that term is defined in the Main Lease. If Seller notifies
Netplex that it does not intend to exercise said Exclusive
Expansion Option, Seller shall have no objection to Netplex
negotiating with OCIC regarding the area that would have been
affected by the expansion option.
4.4 Assignment and Subletting, Right of First Refusal, Option to
Sublease Additional Space
4.4.1 Seller shall not sublet any portion of the Leased
Premises not subleased to Netplex pursuant to this Sublease, nor
shall it assign any lease for the Expansion Area, as that term is
defined in the Main Lease, nor shall it sublet such Expansion
Area, unless and until (i) it offers in writing such assignment
or sublease to Netplex first on the same terms and conditions
offered to or proposed by any third party and (ii) Netplex fails
or refuses to accept said offer within thirty (30) days of
receipt of Seller's written offer.
4.4.2 Netplex shall not (i) assign this Sublease, (ii) permit
this Sublease to be assigned by operation of law or otherwise,
(iii) further sublease all or any part of the Subleased Premises,
or (iv) mortgage, hypothecate or otherwise encumber in any
respect, Netplex's interest in this Sublease, without the prior
written consent of Seller in each instance, which Seller may
grant or withhold, provided such withholding shall be reasonable,
and, in any such event, any such proposed assignment and/or
further sublease of all or any part of the Subleased Premises
shall be expressly subject to, and shall be in accordance with,
the provisions of the Main Lease and this Sublease. Netplex
covenants and agrees that, notwithstanding any permitted
assignment or further sublease, Netplex shall remain fully liable
to Seller for the payment of the annual fixed rent and additional
rental hereunder and for all other obligations of this Sublease
on the part of Netplex to be performed or observed. The sums
payable hereunder shall be paid to Seller as and when payable by
the assignee or further subtenant to Netplex.
4.4.3 For the Term of this Sublease, Netplex, subject to the
terms of Section 4.4.4 of this Sublease, shall have the option to
sublease such portion of the Leased Premises not already
subleased to Netplex pursuant to this Sublease to the extent that
viaLink or its other subleasees or assigns are not using or have
use for The viaLink Company space shown on the then current Exhibit B.
4.4.4 Beginning January 1, 2000 and for the duration of this
Sublease, and notwithstanding anything to the contrary herein, if
Netplex (i) desires to lease more than seventy percent (70%) of
the Leasable Space and (ii) if such amount of the Leasable Space
desired by Netplex is more than the space determined by Seller at
such time, in its sole discretion, to be not needed for the
operations of Seller, and (iii) if Netplex and OCIC have agreed
to a new lease between them concerning the leased premises
wherein, inter alia, Seller is released from its obligations
under the Main Lease, then Netplex must elect to lease all of the
Leased Premises. Further, in order to make such election,
Netplex on or after January 1, 2000 shall give Seller nine months
written notice of such election. The effective of such election
will be nine months after receipt of such notice by Seller. If
Netplex makes the election in this Section 4.4.4 but is unable to
satisfy precondition (iii) above within sixty (60) days after
giving notice to Seller as required in this Section 4.4.4, Seller
will nonetheless sublease all of its remaining space to Netplex
on the terms and conditions of this sublease. Furthermore, if
Netplex is unable to satisfy condition (iii) above and Netplex
elects to take all of Seller's remaining space, Netplex shall
reimburse Seller for the reasonable costs incurred by Seller for
the following: (i) in moving its office, workstation and
conference room, (ii) its in moving office and workstation
computer hardware and fixtures, (iii) in de-installing, moving
and reinstalling data centers and computer labs, (iv) in
purchasing and installing a similar LAN environment using
voice/data wiring of a AT&T Systimax Category 5 cable or better,
(v) in installing and relocating voice, data and ISP carrier
services, (vi) any costs incurred for early termination of
services with support vendors, (vii) in purchasing and installing
a security system comparable to the existing system, (viii) in de-
installing, moving, and reinstalling phone switches, (ix) any
costs associated with the moving or replacement of any future
installed hardware, equipment, or services as mutually agreed to
by both parties, and (x) the buildout costs incurred by Seller in
reestablishing an establishment comparable to the then existing
space occupied by Seller. Netplex shall pay Seller for such
costs within thirty (30) days after an invoice(s) is received for
the same. Netplex shall not have any duty to reimburse Seller
for such costs and expenses if Netplex satisfies precondition
(iii) above.
ARTICLE V - General Provisions
5.1 Entire Agreement
Seller and Netplex agree that this Sublease contains and is
the entire agreement between the parties hereto, and takes the
place of any prior negotiations regarding the subject matter or
any portion of the terms hereof, and that no alterations, changes
or modifications of this Sublease shall be effective unless made
in writing and exercised on behalf of each of them by their
appropriate corporate officers and the corporate seal of each
party affixed thereto.
5.2 Invalidity
Should any clause or provision of this Lease be invalid or
void for any reason, such invalid or void clause or provision
shall not affect the whole of this instrument, but the balance of
the provisions hereof shall remain in full force and effect.
5.3 Notices
Any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either
party to the other, pursuant to this Sublease or pursuant to any
applicable law or requirement of public authority, shall be in
writing (whether or not so stated elsewhere in this Sublease) and
shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested,
addressed as follows:
if to Seller:
Applied Intelligence Group, Inc.
13800 Benson Road
Edmond, Oklahoma 73013
Attention: Robert Baker
with copies to:
Richard M. Klinge, Esq.
Richard M. Klinge Associates, P.C.
228 Robert S. Kerr Avenue, Suite 940
Oklahoma City, OK 73102
if to Netplex:
The Netplex Group, Inc.
8260 Greensboro Drive
McLean, VA 22102
Attention: Gene Zaino, President
with copies to:
Vedder Price Kaufman Kammholz & Day
805 Third Avenue
New York, NY 10022
Attention: Edward J. Walsh, Jr., Esq.
5.4 Binding Effect
This agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and (subject to
the provisions hereof) their permitted assigns.
5.5 Time Is Of The Essence.
Time is of the essence as to each and every condition,
obligations, agreement and covenant in this Sublease.
5.6 Miscellaneous
5.6.1 Netplex makes the same representation and
warranty to Seller as Seller made to OCIC in Section
7.5 of the Main Lease. Said Section 7.5 is
incorporated by reference into this Sublease.
5.6.2 Netplex and Seller make the same covenants and
agreements as to this Sublease that OCIC and Seller
made in Section 7.4 of the Main Lease. Said Section
7.4 of the Main Lease is incorporated herein by
reference.
5.6.3 This Sublease shall not be filed of record.
Netplex may file a Memorandum of this Sublease of
record in substantially the same form as the Memorandum
of Lease attached to the Main Lease as Exhibit G.
SIGNATURE PAGE FOLLOWS
SUBLEASE
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Sublease
as of the day and year first above written.
"Seller":
APPLIED INTELLIGENCE GROUP, INC.
By: _/s/Robert L. Barcum________________
Its: _President_________________________
"Netplex":
THE NETPLEX GROUP, INC.
By: _/s/Gene Zaino________________________
Its: _President________________________
Exhibit 10.53
SOFTWARE REMARKETING AND RESELLING AGREEMENT
This Software Remarketing and Reselling Agreement
("Agreement") is made effective September 1, 1998 by and between
The Netplex Group, Inc., a New York corporation ("Netplex") and
Applied Intelligence Group, Inc., an Oklahoma corporation
("viaLink").
WHEREAS, viaLink is the owner of a certain software product
known as "ChainLink" which viaLink uses in its technical
consulting business (the "Licensed Software");
WHEREAS, Netplex has paid viaLink substantial consideration
for viaLink's technical consulting business, and Netplex desires
to secure a license to remarket and resell the Licensed Software
for use in the technical consulting business;
NOW THEREFORE, the parties agree as follows:
A. Definitions.
1. Licensed Software. The term "Licensed Software" means any
copy of the source code or object code version of the proprietary
computer software known as ChainLinkr and all Enhancements to
such software and any and all Derivative Works or compilations
based on or incorporating said software.
2. Enhancements. The term "Enhancements" shall refer to all
modifications to the Licensed Software of any kind (including
Derivative Works), if any, made by either party to this
Agreement. viaLink retains the ownership rights to and in any
Enhancements.
3. Derivative Work. The term "Derivative Work" means a work
created by Netplex and based on or incorporating the Licensed
Software and/or the Documentation, including but not limited to
translations, abridgements, condensations, improvements, updates,
enhancements, or any other form in which the Licensed Software
and/or the Documentation may be recast, transformed, adapted, or
revised. viaLink retains the ownership rights to and in any
Derivative Works.
4. Documentation. The term "Documentation" means the manuals
and/or other support documents for the Licensed Software prepared
by viaLink.
5. Customer. The term "Customer" means any end user to whom
Netplex or one of its sublicensees sublicenses an object copy of
the Licensed Software or Derivative Work.
6. Term. The term "Term" shall have the meaning set forth in
Section C of this Agreement.
7. Affiliate. The term "Affiliate" shall have the same
meaning as set forth in the Asset Acquisition Agreement.
8. Control. The term "Control" shall have the same meaning
as set forth in the Asset Acquisition Agreement.
9. Sublicense Agreement. The term "Sublicense Agreement" means
a contract between Netplex and a Customer whereby the Customer is
granted the right to use all or a part of an object code version
of the Licensed Software or Derivative Works.
10. Asset Acquisition Agreement. The term "Asset Acquisition
Agreement" shall refer to the Asset Acquisition Agreement
executed between the parties as of August 31, 1998, as amended.
11. Earn-Out Agreement. The term "Earn-Out Agreement" shall
refer to the Earn-Out Agreement, which was executed between the
parties pursuant to the Asset Acquisition Agreement, and any
amendments thereto.
B. Grant of License.
1. Subject to the terms of this Agreement, viaLink hereby
grants to Netplex for the Term of this Agreement, the
nonexclusive, nontransferable license to use, copy and distribute
throughout the world the Licensed Software, the Documentation,
and to modify the Licensed Software and Documentation to create
Derivative Works. During the Term of this Agreement, viaLink and
any of its subsidiaries, Affiliates, successors or assigns
(except as hereinafter stated) shall not, directly or indirectly,
alone or as a partner, partial owner, consultant, or agent (of
any other corporation, partnership or other business
organization), engage in the sale, use or delivery of Chainlinkr
to the retail and distribution industries other than as is
reasonably necessary for the sale, licensing, installation,
integration, use, implementation and support of viaLink products
and services. viaLink and Netplex agree that the viaLink
business is defined as substantially building, marketing and
implementing proprietary software products, information content
and related services to facilitate electronic commerce. Subject
to these limitations, viaLink specifically reserves the right to
itself, its agents and its successors and assigns the limited
right to license, use, copy and sublicense Chainlinkr, but only
to the extent reasonably necessary in the sale, licensing,
installation, integration, use, implementation and support of
viaLink products and services.
2. Subject to the terms of this Agreement, viaLink hereby
grants to Netplex for the Term of this Agreement the
nonexclusive, nontransferable right to sublicense to Customers
throughout the world an executable version or object library
version of the Licensed Software, the Documentation, and/or any
Derivative Works. The rights granted hereunder also include the
right of Netplex to grant permission to its sublicensees to also
market and grant sublicenses in and to Chainlinkr, provided that
such sublicensees execute a sublicense agreement satisfactory to
viaLink.
3. Subject to the terms of this Agreement, viaLink hereby
grants to Netplex for the Term of this Agreement the right to
create Enhancements and/or Derivative Works, provided however,
that viaLink retains all ownership rights in and to any such
Enhancements and Derivative Works.
4. Subject to the terms of this Agreement, viaLink hereby
grants to Netplex during the Term of this Agreement, the right to
use the Chainlinkr trademark owned by viaLink. Such trademark
shall only be used by Netplex in conjunction with the rights
granted in this Agreement in the following form: "Chainlinkr".
Netplex shall not use said trademark in any other form without
the prior, written consent of viaLink.
C. Term. The term of this Agreement shall begin on September
1, 1998 and end on December 31, 2003, unless earlier terminated
pursuant to the terms hereof. Notwithstanding anything else to
the contrary herein, it is agreed and understood that this
Agreement shall automatically terminate if the Closing of the
Asset Acquisition Agreement does not occur, as such Closing is
defined in such Asset Acquisition Agreement as amended.
D. Fees and Payments.
1. Sublicense Fee. In return for Netplex's maintenance and
support obligations hereunder, viaLink shall not be entitled to
any Sublicense fees for the first 100 Sublicenses to Netplex's
customers during each year of this Agreement. For each
Sublicense in excess of 100 each year of this Agreement, within
thirty (30) days after delivery of a copy of the executable
version or object library version of the Licensed Software or
Derivative Work to a properly sublicensed Customer, Netplex shall
pay viaLink the sum of $2,500 per Sublicense.
2. Returns. viaLink will refund to Netplex any sublicense fees
paid to viaLink if the Customer returns all Licensed Software,
Documentation, and Derivative Works to Netplex, and Netplex
returns to the Customer all sublicense fees paid by the Customer
to Netplex. Such refund will be made by viaLink within thirty
(30) days after receipt of full documentation substantiating the
return of the Licensed Software, Documentation, and Derivative
Works.
3. Taxes. Netplex will pay all taxes of any type that are
imposed on this Agreement or on the use, modification or
sublicensing of the Licensed Software or Derivative Works by
Netplex.
4. Late Charges. Any payment or part of a payment that is not
paid when due shall bear interest at the rate of 1.5% per month
from its due date until paid.
5. Records and Audit. Netplex shall maintain accurate records
relating to the copying, modification, distribution, and
sublicensing of the Licensed Software and Derivative Works, so as
to establish the payments due hereunder, to identify the location
of all copies of the Licensed Software and Derivative Works, to
identify all Sublicenses, and to otherwise verify Netplex's
compliance with the terms of this Agreement. Such books and
records shall be available for inspection by viaLink at their
normal place of keeping during reasonable business hours upon
seven (7) days written notice to Netplex.
E. Delivery. viaLink shall deliver to Netplex copies of the
source code and object code of the Licensed Software and a copy
of the Documentation upon execution of this Agreement. viaLink
shall also deliver to Netplex any subsequent versions of the
Licensed Software which it may develop in the future. Netplex
shall be responsible for delivering the object code version of
the Licensed Software, the Documentation and the Derivative Works
to its Customers.
F. Maintenance and Support. Netplex shall be responsible for
maintaining the Licensed Software, the Documentation, and all
Enhancements and Derivative Works and for providing any technical
support relating to the Licensed Software to its Customers.
Notwithstanding anything to the contrary in this Agreement,
viaLink shall not have any responsibility or obligation to
maintain or support the Licensed Software for Netplex or any of
Netplex's Customers. Notwithstanding the foregoing, during the
term of this Agreement, if viaLink develops Enhancements or
Derivative Works or otherwise changes the Licensed Software or
Documentation, then viaLink shall make the Enhancements,
Derivative Works, or changes available to Netplex under this
Agreement.
G. Ownership and Notices. Netplex acknowledges that the
Licensed Software, Enhancements, and Documentation, as delivered
hereunder and as modified by viaLink, including Derivative Works,
are the sole and exclusive property of viaLink and that Netplex
has no rights in the foregoing except as set forth in this
Agreement. To the extent Netplex may have any rights in the
Enhancements or Derivative Works, Netplex hereby assigns such
rights, including copyrights, to viaLink. Netplex shall not
remove, alter, cover or obfuscate any copyright notice or other
proprietary rights notice placed in machine readable language or
human readable form on the Licensed Software or Documentation.
Netplex shall insure that such notices continue to appear or
exist in any Derivative Work Netplex develops. Notwithstanding
anything to the contrary in this Agreement or in the Asset
Acquisition Agreement, and further notwithstanding any exercise
of any option granted to Netplex pursuant to this Agreement,
Netplex acknowledges and agrees that Netplex does not obtain and
shall not acquire by the terms of any of the foregoing or
otherwise, any right, title, interest, or option of any kind or
nature in or to any of the other products or services of viaLink.
H. Option to Purchase. Because Netplex has the responsibility
to maintain and support the Licensed Software, viaLink hereby
grants to Netplex the irrevocable option to purchase the Licensed
Software, the Documentation, all Enhancements and all Derivative
Works. The option shall be exercisable upon ten (10) days
written notice by Netplex to viaLink ("Option To Purchase"). The
Option To Purchase may only be exercised on or after January 1,
2002. The Option To Purchase shall expire on December 31, 2003.
The price shall be the lesser of (a) an amount equal to ten
percent (10%) of the difference between the total revenue earned
by Netplex from the sublicensing and/or maintenance of Licensed
Software less the cost directly incurred by Netplex to maintain
and support the Licensed Software, or (b) one hundred thousand
dollars ($100,000). Notwithstanding anything to the contrary
herein, Netplex's right to exercise such Option To Purchase is
subject to the following: (i) Netplex must grant viaLink and/or
its successors or assigns the nonexclusive, perpetual,
transferable limited right to license, use, copy, to make
Enhancements and Derivative Works and to sublicense Chainlinkr,
but only to the extent reasonably necessary for the sale,
licensing installation, integration, use, implementation and
support of viaLink products and services; (ii) Netplex must grant
to viaLink and its successors and assigns the nonexclusive,
perpetual, transferable right and license to use the source code
and executable code and continue to support or otherwise address
any issues raised by any licensees of Chainlinkr which were
granted licenses by viaLink prior at the time that Netplex
exercised its Option To Purchase. Moreover, the exercise of the
Option To Purchase shall not affect the rights of any licensee of
viaLink to continue to use the Licensed Software pursuant to the
license agreement by which such licensee acquired the right to
use the same. In the event that Neptlex exercises its Option To
Purchase, viaLink shall be entitled to retain and use a copy of
the then current source code and executable code for the Licensed
Software. In the event that said Option To Purchase is
exercised, the rights granted to viaLink, its licensees and
successors and assigns hereunder shall survive the termination of
this Agreement. In the event that Netplex does not elect to
purchase Chainlinkr or if this Agreement is terminated for any
reason, viaLink shall not have any liability for any of the
licenses or sublicenses for Chainlinkr executed by Netplex or its
sublicensees during the term of this Agreement. Netplex shall
indemnify, defend and hold viaLink harmless from any of the
claims, damages or causes of action arising out of any licenses
or sublicenses executed by Netplex during the term of this
Agreement, except to the extent that any such claim or cause of
action is covered by Section L(2) hereof.
I. Confidentiality. Netplex acknowledges that the Licensed
Software, Derivative Works, and the Documentation contain
valuable trade secrets which are the sole and exclusive property
of viaLink. Netplex agrees that it will not disclose this
information to anyone other than its own employees or the
employees of its affiliates, subsidiaries or related companies,
that it will protect the confidentiality of this information, and
that it will take reasonable precautions to prevent any
unauthorized use or disclosure of this information.
Notwithstanding anything to the contrary herein, Netplex's
obligations under this Section shall survive the termination of
this Agreement.
J. Warranty and Disclaimer.
1. Year 2000 Compliance. viaLink warrants and represents that
the Licensed Software will not produce errors processing date
data in connection with the year change from December 31, 1999 to
January 1, 2000 when used with accurate date data in accordance
with the documentation therefore, provided all other products
(including, without limitation, other software, firmware,
hardware, and operating systems) used with it properly exchange
date data with the Licensed Software. The Licensed Software will
recognize the year 2000 as a leap year. The foregoing warranty
and representation refers only to the Licensed Software as
delivered by Seller at the execution of this Agreement, and does
not apply to user initiated modifications, user customizable
features or third party add-on features or products, including
items such as macros and custom programming and formatting
features, and further does not constitute a warranty or extend
the terms of any existing warranty.
2. Other Warranties. THE WARRANTIES SET FORTH IN SECTION (J)(1)
AND IN SECTION (L)(1) OF THIS AGREEMENT ARE THE ONLY WARRANTIES
MADE BY viaLink IN REGARDS TO THE LICENSED SOFTWARE AND viaLink
SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR
SAID WARRANTIES SET FORTH IN SECTION (J)(1) AND IN SECTION (L)(1)
OF THIS AGREEMENT, THE LICENSED SOFTWARE IS DELIVERED TO NETPLEX
AS IS, WHERE IS.
K. Limitation of Liability. IT IS UNDERSTOOD AND AGREED THAT
viaLink's LIABILITY FOR ANY DAMAGES SUFFERED BY NETPLEX OR ITS
CUSTOMERS, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY
THEORY, IN NEGLIGENCE, OR OTHERWISE SHALL BE LIMITED TO THE
AMOUNT PAID TO viaLink BY NETPLEX PURSUANT TO THIS AGREEMENT.
UNDER NO CIRCUMSTANCES SHALL viaLink BE LIABLE FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF
NETPLEX, ANY CUSTOMER, OR ANY THIRD PARTY, EVEN IF viaLink HAS
BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO
ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2)
YEARS AFTER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE
OCCURRENCE OF THE EVENT(S) WHICH GAVE RISE TO THE CAUSE OF
ACTION.
L. Patent, Copyright and Trade Secret Indemnity.
1. Representation. viaLink represents that it owns all
patented or copyrighted material contained in and all trade
secrets with respect to the Licensed Software and Documentation
as the same were delivered to Netplex at the execution of this
Agreement.
2. Indemnification by viaLink. In the event any suit is
brought against Netplex or one of its Customers based on a claim
that the unmodified version of the Licensed Software originally
delivered by viaLink at the execution of this Agreement infringes
any existing patent, copyright, or trade secret, viaLink agrees
that it will:
a.to the extent that the claims or proofs of the suit involve
claims or factual allegations that the unmodified Licensed
Software infringes any existing patent, copyright, or trade
secrets, defend the suit at its expense and hold Netplex
and/or its Customers harmless therefrom, as long as viaLink is
promptly notified in writing and is given complete authority
and information required to defend the suit;
b.to the extent that any judgment in any such suit is based on
proof that the unmodified Licensed Software infringes any
existing patent, copyright, or trade secrets, pay all damages
and costs awarded against Netplex and/or its Customers related
thereto; provided that viaLink shall not be responsible for
any cost, expense, or compromise made or incurred by Netplex
and/or its Customers without viaLink's written consent;
c.allow Netplex to participate in the defense of the suit at
its own expense, if it so elects.
3. Indemnification by Netplex. In the event any suit is
brought against viaLink or one of its Customers based on a claim
that the Licensed Software, as modified by or on behalf of
Netplex or any of its sublicensees or their sublicensees,
infringes any existing patent, copyright, or trade secret,
Netplex agrees that it will:
a.to the extent that the claims or proofs of the suit involves
claims or factual allegations that the Licensed Software as a
result of the modifications, infringes any existing patent,
copyright, or trade secrets, defend the suit at its expense
and hold viaLink and/or its customers harmless therefrom, as
long as Netplex is promptly notified in writing and is given
complete authority and information required to defend the
suit;
b.to the extent that any judgment in any such suit is based on
proof that the Licensed Software as a result of the
modifications, infringes any existing patent, copyright, or
trade secrets pay all damages and costs awarded against
viaLink and/or its Customers and hold viaLink harmless
therefrom; provided that Netplex shall not be responsible for
any cost, expense, or compromise made or incurred by viaLink
and/or its customers without Netplex's written consent;
c. allow viaLink to participate in the defense of the suit at
its own expense, if it so elects.
4. viaLink's Options. During the Term of this Agreement,
should the Licensed Software or any part thereof, before any
modifications or Enhancements thereto or Derivative Works
therefrom are made by or on behalf of Netplex or any of
Customers, become, or in viaLink's opinion, be likely to become,
the subject of a claim for infringement, viaLink shall, at its
own expense and option, either procure for Netplex the right to
continue using such Licensed Software or replace the same with
non-infringing software or modify the Licensed Software so that
it becomes non-infringing. If neither of these options is
reasonably practical, viaLink may require that the Licensed
Software and all Derivative Works be returned and this Agreement
terminated upon a refund to Netplex for all Sublicense Fees paid
hereunder, without deduction for use, and upon reimbursement to
Netplex for the costs of all maintenance and support provided by
Netplex. Moreover, viaLink shall have no obligation with respect
to any such claim based upon Netplex or its Customer combining,
operating or using the Licensed Software with equipment, data or
software not furnished by viaLink. Netplex shall have the option
to procure continued use at its own expense. After the Term of
this Agreement or in the event that any modifications or
Enhancements or Derivative Works are made to the Licensed
Software by or on behalf of Netplex or any of its Customers,
viaLink shall not have any obligation under this Section (K)(4).
M. Termination.
1. By viaLink. viaLink may terminate this Agreement prior to
its expiration on the occurrence of any of the following events:
a. The failure of Netplex to pay any sum when due hereunder,
provided however, that viaLink shall have given Netplex written
notice of its intent to terminate this Agreement, and Netplex has
not paid the amounts due within thirty (30) days after receipt of
the notice.
b. Any other material default by Netplex under this Agreement,
the Asset Acquisition Agreement or the Earn-Out Agreement which
has not been cured within thirty (30) days of written notice
given by viaLink to Netplex.
2. By Netplex. Netplex may terminate this Agreement upon
ninety (90) days written notice to viaLink.
3. Duties upon Termination. Upon expiration or termination of
this Agreement, Netplex agrees to cease using, modifying, and
sublicensing the Licensed Software, Derivative Works, and
Documentation, and to return to viaLink all copies thereof. The
obligation of confidentiality set forth in this Agreement shall
remain in effect notwithstanding any termination of this
Agreement. Netplex shall retain all sublicense agreements and
records relating to sublicense agreements for a period of two (2)
years after termination and shall deliver copies of the same to
viaLink upon request. In the event of termination by either
Netplex or by viaLink, Netplex, at viaLink's option, shall assign
and transfer to viaLink all of Netplex's right and interest in
all sublicenses of the Licensed Software.
5. Customer Rights Upon Termination. Termination shall not
affect the rights of any Customer to use the Licensed Software;
subject however to the terms, covenants and conditions of the
sublicenses under which such Customers obtained the right to use
the Licensed Software.
N. Assignment. This Agreement may not be assigned by viaLink
or Netplex without the prior written approval of the other party,
which approval shall not be unreasonably withheld.
O. Entire Agreement. The parties agree that this Agreement
constitutes the complete and exclusive statement of the agreement
between them with regards to the subject matter of this Agreement
which supercedes all proposals, oral or written, and all other
communications between them relating to the license and use of
the Licensed Software; provided however, and notwithstanding
anything to the contrary herein, to the extent that there is any
conflict between the terms of the Asset Acquisition Agreement and
this Agreement in regards to the use of Chainlinkr, the terms and
conditions of this Agreement shall prevail in regards thereto.
P. Amendments. This Agreement may only be amended, modified or
changed in a writing signed by both parties.
Q. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
R. No Waiver. The failure of either party to enforce any of
the provisions hereof shall not be construed to b a waiver of the
right of such party thereafter to enforce such provisions.
S. Attorney's Fees and 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.
T. Relationship of the Parties. Each party is acting as an
independent contractor and not as agent, partner, or joint
venturer with the other party for any purpose. Except as
provided in this Agreement, neither party shall have any right,
power, or authority to act or to create any obligation, express
or implied, on behalf of the other.
U. Notices. All notices demands and other communications
pertaining to this Services Agreement ("Notices") shall be in
writing addressed as follows:
If to viaLink:
Robert N. Baker, Vice President
viaLink
13800 Benson Road
Edmond, OK 73013-6417
with a copy to:
Richard M. Klinge, Esq.
Richard M. Klinge & Associates, P.C.
228 Robert S. Kerr, Suite 940
Oklahoma City, OK 73102
If to Netplex:
The Netplex Group, Inc.
Attention: Gene F. Zaino, President
8260 Greensboro Drive, 5th Floor
McLean, Virginia 22102
with a copy to:
Attn: Edward J. Walsh, Jr., Esq.
Vedder Price Kaufman & Day
22nd Floor
805 Third Avenue
New York, NY 10022
Notices shall be deemed given five (5) business days after
being mailed by certified or registered United States mail,
postage prepaid, return receipt requested, or on the first
business day after being sent, prepaid, by nationally
recognized overnight courier that issues a receipt or other
confirmation of delivery to the appropriate recipient of
such Notice. Any party may change the address to which
Notices under this Services Agreement are to be sent to it
by giving written notice of a change of address in the
manner provided in this Services Agreement for giving
Notice.
V. Remedies. The rights and remedies granted to viaLink in
this Agreement are in addition to and not in lieu of any other
rights and remedies which viaLink may have at law or in equity of
any breach of default by Netplex of this Agreement, including
without limitation the right to obtain appropriate injunctive
relief without the necessity of bond to enforce this Agreement
against any breach of threatened breach hereof. The rights and
remedies granted Netplex in this Agreement are exclusive.
W. Binding. This Agreement is binding on the successors and
assigns of the parties hereto.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the undersigned have signed this
Software Remarketing and Reselling Agreement as of the date first
above written.
THE NETPLEX GROUP, INC.
_/s/Gene Zaino_______________
Gene F. Zaino
President
APPLIED INTELLEGENCE GROUP, INC.
By: _/s/Robert L. Barcum_________________
Name: __Robert L. Barcum_________________
Title: __President_______________________
Exhibit 10.54
CONSENT TO ACTION IN LIEU
OF A MEETING OF THE SHAREHOLDERS
OF APPLIED INTELLIGENCE GROUP, INC.
The undersigned holders of a majority of the outstanding
shares of common stock, $.001 par value per share (the "Common
Stock'), of Applied Intelligence Group, Inc., an Oklahoma
corporation, (the "Corporation"), do hereby adopt and consent to
the adoption of the following resolutions, with the same force
and effect as if such resolutions were proposed, seconded and
adopted by the holders of a majority of the outstanding shares of
Common Stock at a meeting of the Corporation's shareholders duly
called and held on the date set forth below:
WHEREAS, upon the recommendation of the Board of Directors
of the Corporation, the below named holders of a majority of the
issued and outstanding shares of Common Stock deem it advisable
to approve the following:
(i) that certain Asset Acquisition Agreement between
the Corporation and The Netplex Group, Inc. dated August 31,
1998, and as amended on September 8, 1998 (the "Asset
Acquisition Agreement");
(ii) amend the Corporation's Certificate of
Incorporation to change the name of the Corporation to "THE
viaLink COMPANY" as required to permit transfer and
assignment of the name "Applied Intelligence Group" to The
Netplex Group, Inc. in accordance with the Asset Acquisition
Agreement;
(iii) amend the Applied Intelligence Group, Inc. 1995
Stock Option Plan (the "1995 Plan") to (A) permit the grant
of non-qualified stock options to all employees and non-
employee service provides of the Company and its
subsidiaries, (B) permit option holders to exercise such
stock options through the end of applicable option exercise
period without requiring continued employment with the
Company as a condition of exercise, and (C) increase the
number of shares of common stock, $.001 par value per share
of the Company (the "Common Stock") authorized and reserved
for issuance under the 1995 Plan from 300,000 to 800,000
(the "1995 Plan Amendment"); and
(iv) amend the Applied Intelligence Group, Inc. 1998
Non-Qualified Stock Option Plan (the "1998 Plan") to (A)
permit the grant of options to all employees and non-
employee service provides of the Company and its
subsidiaries, and (B) increase the number of shares of
Common Stock authorized and reserved for issuance under the
1998 Plan from 150,000 to 800,000 (the "1998 Plan
Amendment")
NOW, THEREFORE, BE IT RESOLVED, that the Asset Acquisition
Agreement between the Corporation and Netplex, Inc., dated August
31, 1998, as amended September 8, 1998, is hereby approved in all
respects;
RESOLVED FURTHER, that Article I of the Certificate of
Incorporation of the Corporation be amended to change the name of
the Corporation as follows:
ARTICLE I
Name
The name of the corporation is "APPLIED
INTELLIGENCE GROUP, INC.", and, as amended, the name of
this Corporation has been changed to "THE viaLink
COMPANY."
RESOLVED FURTHER, that the Applied Intelligence Group, Inc.
1995 Stock Option Plan be amended as follows:
The Applied Intelligence Group, Inc. 1995 Stock Option Plan
(the "Plan") is hereby amended as follows:
I.
The first sentence of Section 1.1 of the Plan is hereby
amended to read as follows:
"The purpose of APPLIED INTELLIGENCE GROUP, INC. 1995
STOCK OPTION PLAN shall be to attract, retain and
motivate management, directors, employees or
professional non-employee service providers of Applied
Intelligence Group, Inc. (the "Company") and
subsidiaries and certain other individuals who have
benefitted or could benefit the Company (collectively,
the "Participants") by way of granting (i) nonqualified
stock options ('Stock Options') and (ii) incentive
stock options ('ISO Options')."
II.
The first sentence of Section 1.4 of the Plan is hereby
amended to read as follows:
"Shares of stock ('Stock') covered by Stock Options and
ISO Options shall consist of Eight Hundred Thousand
(800,000) shares of the voting common stock, par value
$.001, of the Company"
III.
The first paragraph of Section 2.2 of the Plan is hereby
amended to read as follows:
"2.2 Grant and Terms for Stock Options. Stock Options
shall be granted on the following terms and conditions.
No Stock Option shall be exercisable more than ten (10)
years from the date of grant. Subject to such
limitation, the Committee shall have the discretion to
fix the period ("Option Period") during which Stock
Options may be exercised."
IV.
The first three sentences of Section 3.2 of the Plan are
hereby amended to read as follows:
"ISO Options may be granted only to management or other
employees of the Company, its parent or any subsidiary
of the Company. No ISO Options shall be granted to any
person who is not eligible to receive 'incentive stock
options' as provided in Section 422 of the Code. No
ISO Options shall be granted to any management or other
employee if, immediately before the grant of and ISO
Option, such employee owns more than 10% of the total
combined voting power of all classes of stock of the
Company, its parent or its subsidiaries (as determined
in accordance with the stock attribution rules
contained in Section 422 and Section 424(d) of the
Code)."
V.
The Plan is hereby amended to delete the word "key" each
place it appears in the Plan.
Except as otherwise provided in this 1998 Amendment to
Applied Intelligence Group, Inc. 1995 Stock Option Plan
("Amendment"), the Plan is hereby ratified and confirmed in all
respects. This Amendment shall be effective as of September 1,
1998.
RESOLVED FURTHER, that the Applied Intelligence Group, Inc.
1998 Non-Qualified Stock Option Plan be amended as follows:
The Applied Intelligence Group, Inc. 1998 Non-Qualified
Stock Option Plan (the"Plan") is hereby amended as follows:
I.
The first sentence of Section 1.1 of the Plan is hereby
amended to read as follows:
"The purpose of the Plan shall be to attract, retain
and motivate directors, executive officers, employees,
independent contractors and consultants of the Company
and its subsidiaries and certain other individuals who
have benefitted or could benefit the Company ('Eligible
Persons') by way of granting non-qualified stock
options ('Stock Options') with stock appreciation
rights attached ('Stock Option SARs')."
II.
The first sentence of Section 1.4 of the Plan is hereby
amended to read as follows:
"Shares of stock ('Stock') covered by Stock Options and
SARs shall consist of 800,000 shares of the Common
Stock, $.001 par value, of the Company, subject to
adjustment pursuant to Section 1.7 of the Plan, which
may be either authorized and unissued shares or
treasury shares, as determined in the sole discretion
of the Board."
III.
Section 2.1.1 of the Plan is hereby amended to read as
follows:
2.1.1 Grant and Terms for Stock Options. Stock
Options and Stock Option SARs shall be granted by the
Board on the following terms and conditions: No Stock
Options and Stock Option SARs shall be exercisable more
than 10 years after the date of grant. Subject to such
limitation, the Board shall have the discretion to fix
the period (the 'Option Period') during which any Stock
Option or Stock Option SAR may be exercised."
IV.
Section 3.1.1 of the Plan is hereby amended to read as
follows:
"3.1.1 Grant and Terms for SARs. The Board may grant
SARs to Participants in connection with Stock Options
granted under the Plan. SARs shall terminate at such
time as the Board determines and shall be exercised
only upon surrender of the related Stock Option and
only to the extent that the related Stock Option (or
the portion thereof as to which the SAR is exercisable)
is exercised. The applicable SAR shall (i) terminate
upon the termination of the underlying Stock Option,
(ii) only be transferable at the same time and under
the same conditions as the underlying Stock Option is
transferable, (iii) only be exercised when the
underlying Stock Option is exercised, and (iv) may be
exercised only if there is a positive spread between
the Option Price and the fair market value of the Stock
for which the SAR is exercised."
Except as otherwise provided in this 1998 Amendment to
Applied Intelligence Group, Inc. 1998 Non-Qualified Stock Option
Plan ("Amendment"), the Plan is hereby ratified and confirmed in
all respects. This Amendment shall be effective as of September
1, 1998.
EXECUTED on the date set forth below, but effective as of
the 1st day of September, 1998.
Date: _October 16, 1998 _/s/Robert L. Barcum________
Robert L. Barcum
Date: _ October 16, 1998 _/s/Robert N. Baker_________
Robert N. Baker
Date: _ October 16, 1998 _/s/Robert L. Barcum________
Robert L. Barcum, as
proxy for and on behalf
of Russell L. Reinhardt
and David B. North
EXHIBIT 99.3
Applied Intelligence Group, Inc., Announces a Change in its Name
to "The viaLink Company"
EDMOND, Okla.--(BUSINESS WIRE)--Oct. 23, 1998--Applied
Intelligence Group, Inc. (Nasdaq: IQIQ)www.vialink.com, an
electronic commerce and leading-edge, Internet-based applications
company announced today that it has changed its name to The
viaLink Company. The change of name is a result of the completed
sale of its Systems Integration and Consulting Business Segment
to The Netplex Group, Inc. (Nasdaq: NTPL), of McLean, Virginia.
Pursuant to the Acquisition Agreement, The Netplex Group has
acquired the rights to use the name "Applied Intelligence Group".
The viaLink Company (formerly known as "Applied Intelligence
Group") will maintain its Nasdaq Symbol: IQIQ. The Company will
also maintain its headquarters in Edmond, Oklahoma.
In addition, the Board of Directors also announced that Lewis B.
"Bucky" Kilbourne, one of the Company's outside board members,
has been named acting CEO of The viaLink Company. Robert L.
Barcum, President of the Applied Intelligence Group division of
the Netplex Group, will remain as Chairman of the Board of The
viaLink Company.
In making the announcement, Kilbourne commented, "Proceeds have
already been received from this sale and will be used to reduce
outstanding debt and allow us to continue our focus of building a
recurring revenue base through the Company's deployed viaLink(R)
and ijob(tm) solutions."
The viaLink Company is an electronic commerce company and is a
recognized leader in providing business solutions through
technology to the retail industry. The viaLink Company's services
combine Electronic Commerce and leading-edge Internet-based
applications to provide consumer product manufacturers,
distributors and retailers the capability of doing business
electronically with all of their trading partners. The
subscription-based viaLink services allow supply chain
participants to electronically send and receive product, cost,
and promotional information in a format that is compatible with
any party's system, regardless of their technological
sophistication, and at a fraction of the cost of traditional EDI
(Electronic Data Interchange).
This press release contains forward-looking statements within the
meaning of the Securities Exchange Act of 1934 ("The Act"). Any
forward-looking statements are made by the Company in good faith,
pursuant to the safe-harbor provisions of the Act. These forward-
looking statements reflect management's current views and
projections regarding economic conditions, industry environments
and Company performance. Factors which could significantly change
results, include but are not limited to sales performance,
expense levels, competitive activity, interest rates, changes in
the Company's financial condition and factors affecting the
retail and technology industry in general. Additional information
regarding these and other factors may be included in the
Company's quarterly 10-QSB filings and other public documents,
copies of which are available from the Company upon request.
CONTACT: Investor Awareness, Inc.
Tony Schor, 847/945-2222
[email protected]
or
The viaLink Company
Lewis B. "Bucky" Kilbourne, 405/936-2300
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