EXHIBIT 10.12
STRATEGIC RELATIONSHIP AGREEMENT
This Strategic Relationship Agreement ("Agreement") is made as of _______ __,
1999 by and between ONEX Ventures LLC, a limited liability corporation ("ONEX
Ventures"), a division of ONEX Group, Inc., and xXxxxxxxxxx.xxx, Inc., a Nevada
corporation ("xXxxxxxxxxx.xxx" or the "Company").
RECITALS
Whereas, ONEX Ventures is a venture capital investment division of ONEX Group,
Inc., a diversified manufacturing and investment company; and,
Whereas, xXxxxxxxxxx.xxx develops, markets and manages Internet-based electronic
advertising, commercials and marketing communications content; and,
Whereas, ONEX Ventures and xXxxxxxxxxx.xxx intend hereby to establish a
strategic relationship in order to supply xXxxxxxxxxx.xxx with introductions and
access to potential strategic partners, customers and investment banking firms
from ONEX Ventures, and to provide xXxxxxxxxxx.xxx products and services to
portfolio companies of ONEX Ventures;
Now, therefore, in consideration of the mutual promises herein, the parties do
hereby agree as follows:
1. Board of Directors Representation. For such time as Onex Ventures
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directly through a related or affiliate entity owns an aggregate amount of not
less than One Hundred Thousand (100,000) shares of the common and/or preferred
stock of xXxxxxxxxxx.xxx, Onex Ventures shall have the exclusive right to elect
two members of the Board of Directors of the Company. The Board of the Company
shall not consist of more than seven (7) members at any time during the
effective period of this voting right held by Onex Ventures.
2. Warrant for Advisory Services. In consideration for providing
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advisory services to the Company, Onex Ventures or its designee shall receive a
warrant for Two Hundred Fifty Thousand (250,000) common shares of
xXxxxxxxxxx.xxx, exercisable at any time at Seven Dollars ($7.00) per share for
a period of five years from September 1, 1999. These warrants shall have the
same registration rights as those granted to purchasers of the Series B
Preferred Stock of the Company.
3. xXxxxxxxxxx.xxx Products. xXxxxxxxxxx.xxx hereby agrees to meet and
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make presentations to ONEX Ventures portfolio companies, as appropriate, in
order to introduce and make available to these portfolio companies
xXxxxxxxxxx.xxx's Internet-based electronic advertising products and services.
4. Access to ONEX Ventures contacts. ONEX Ventures hereby agrees to
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provide xXxxxxxxxxx.xxx with introductions to ONEX Ventures various portfolio
companies, as well as to other potential strategic partners and investment
bankers
DRAFT
5. Trademarks and Publicity. Each party hereto is the owner of certain
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trademarks and such ownership shall not be altered by the terms of this
Agreement unless specifically set forth. Neither party shall use a trademark
owned by the other party without the prior written consent of such other party.
6. Confidentiality. The parties hereto have executed a separate
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Proprietary Information Agreement attached hereto as Exhibit A and incorporated
herein as if fully set forth, which sets forth the terms and conditions of the
disclosure and use of proprietary information by each party. The obligations of
each party under such Proprietary Information Agreement shall survive the
termination of this Agreement, and such obligations shall continue for the term
set forth therein.
7. Agreement to Indemnify. Except for the negligence or willful
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misconduct of the other party, its agents, servants or employees, each party
(the"Indemnitor") shall fully protect, indemnify and save harmless and defend
the other, and their respective directors, offices, agents and employees from
and against any and all claims, actions, damages, liability, injury, liens,
taxes, penalties, interest or causes of action of every nature in connection
with the loss of life and/or personal or bodily injury or property damage
arising out of or incidental to or in connection with the performance of its
services under this Agreement occasioned wholly or in part by any negligent act
or omission by the Indemnitor.
8. Term and Termination. This Agreement shall be in full force and
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effect beginning on the date hereof, and shall remain in effect until three (3)
years after the date hereof, or until terminated.
Either party may terminate this Agreement for cause upon thirty (30) days
written notice to the other party. In the event notice of termination is
provided by either party to the other party for a breach of this Agreement, the
party receiving notice shall have thirty (30) days to cure such breach of this
Agreement. Either party may terminate this Agreement for any reason upon ninety
(90) days written notice .
9. Headings. All headings in this Agreement are inserted only for
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convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
10. Notices. All notices under this Agreement shall be in writing and
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shall be effective upon personal delivery to a party, or three business days
after deposit in the United States mail, registered or certified, postage
prepaid and addressed to the respective parties as follows (or such other
address as the parties may from time to time designate in writing):
ONEX Ventures L.L.C. xXxxxxxxxxx.xxx, Inc.
Attention: Xxxx Xxxxxxx Attention: Xxxx XxXxxx, EVP
00 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
DRAFT
Copy: Copy: Xxxxx Xxxxx, Esq.
Xxxx, Xxxx, Xxxx &
Freidenrich, LLP
Fax: (000) 000-0000
11. Binding. This Agreement shall inure to and bind the successors,
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assigns, agents, and representatives of the parties.
12. Dispute Resolution. In the event of any dispute or disagreement
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between the parties arising under or relating to this Agreement, the parties
agree to make diligent and reasonable attempts to resolve, through negotiation,
all such disputes or disagreements. Such negotiation shall occur through
ascending levels of management of each Party, and the parties shall specifically
discuss the use of arbitration prior to resorting to a court of competent
jurisdiction for adjudication. Prior to initiating any legal proceedings, the
complaining Party shall provide ten (10) days written notice to the other Party.
Neither party shall be entitled to recover costs or attorney fees.
Notwithstanding a disagreement or dispute, the parties agree to proceed
diligently with performance of this Agreement.
13. Limitation of Liability. Neither parties hereto shall under any
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circumstances be liable to the other for any special, indirect, incidental or
consequential damages, including, without limitation, loss of profits or
revenues arising out of this Agreement, even if the other party is informed in
advance of the possibility or likelihood of such damages.
14. Force Majeure. Neither party shall be held responsible for any delay
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or failure in performance of this Agreement to the extent such failure is caused
by fire, flood, explosion, war, strike, embargo, civil or military authority,
act of God, act of omission of carriers or similar causes beyond its control
("Force Majeure Condition").
If any Force Majeure Condition occurs, the party delayed or unable to
perform shall give immediate notice to the other party. Both parties shall use
their best efforts to minimize the consequences of Force Majeure Conditions. If,
however, a Force Majeure Condition continues uninterruptedly over a period of
more than three (3) months and prevents performance by a party, and if no other
understanding is reached, the other party may (but shall not be obligated to)
forthwith terminate this Agreement pursuant to the provisions of Article 8.
15. Assignment. Except in connection with a merger or sale of all or
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substantially all the assets of a party, neither this Agreement, nor any right
or obligation thereunder, shall be assigned to third parties by either party to
this Agreement without the prior written consent of the other party. Such
consent shall not unreasonably be withheld or delayed.
16. Relationship. Each Party is an independent contractor, and this
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Agreement shall not be construed as creating a partnership, joint venture,
agency or employment relationship between the parties or as creating any other
form of legal association that would impose liability on one Party for the act
or failure to act of the other Party. Neither of the parties (including its
affiliates, agents, representatives, employees or others acting on its behalf)
is a representative of the other for any purpose, and no such Party has any
power or authority to represent, act for, bind, or otherwise create or assume
any obligation on behalf of the other Party for any purpose whatsoever.
DRAFT
17. Choice of Laws. This Agreement shall be governed by the laws of the
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State of California, and any question arising hereunder shall be construed or
determined according to such law.
18. Authorization. Each of the signers below represent they are duly
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authorized and fully empowered to enter into this Agreement, and have received
any and all required board of directors resolutions, shareholder resolutions,
regulatory approvals and other approvals.
19. Entire Agreement. This Agreement contains all of the agreements of
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the parties hereto with respect to the matters contained herein. No prior
agreement or understanding pertaining to any such matter shall be effective for
any purpose. No provision of this Agreement may be amended or modified in any
manner whatsoever except by an agreement in writing by each of the parties
hereto.
In witness whereof, the parties have signed this Agreement as of the date first
set forth above.
XXXXXXXXXXX.XXX, INC. ONEX VENTURES, L.L.C.
___________________________________ __________________________________
By: Xxxx XxXxxx By:
Title: Executive Vice President Title:
and Director
Date: ____________________________ Date: ___________________________
