Exhibit 3.23
AIM STOCK AGREEMENT
THIS AGREEMENT is made as of the 30th day of December, 1998 (the "Effective
Date") by and between XXX.XXX INTERNATIONAL INC., ("XXX.XXX"), a corporation
having a principal place of business at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0 and AMERICAN INTERACTIVE MEDIA, INC. ("AIM"), a
corporation having a place of business at Xxxxx 000, 000 Xxxxxxxx, Xxx Xxxx, XX,
00000.
BACKGROUND:
1. XXX.XXX has expertise in designing and operating online auctions.
2. AIM retained XXX.XXX to provide advice on establishing an AIM E-Commerce
Service as described below.
3. XXX.XXX has completed an assessment of AIM's network and infrastructure in
order to support the e-commerce technology of Xxx.Xxx and set up a
demonstration site, at the request of AIM.
ARTICLE I
INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, each capitalized
term shall have the meanings indicated below.
"Agreement" means this Agreement and all schedules annexed to this
Agreement as the same may be amended from time to time in accordance with
the provisions hereof or thereof, "hereof'" "hereto" and "hereunder" and
similar expressions mean and refer to this Agreement and not to any
particular article or section; except where the context specifically
requires, "Article" or "Section" means and refers to the specified article
or section of this Agreement;
"AIM E-Commerce Service" means the service which will permit retail
consumers in the Territory including, without limitation, "small office
home office" customers ("SOHO") to access an online auction as currently
operated by XXX.XXX or its subsidiaries at the XXX.XXX Site by using their
cable modems or other television based on line enabling devices (or by way
of any method of internet access in the case of members of certain affinity
groups and in house networks produced and distributed by AIM) to
participate in on-line auctions of consumer goods and services, but
excluding business to business and liquidation applications;
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"AIM Stock" means that number of common shares in the capital of AIM which
has an aggregate value of [Confidential Information filed separately with
the SEC] valued at the average trading price of AIM stock on each of the
twenty-one (21) trading days prior to December 31,1998;
"XXX.XXX Site" means the Web site at which XXX.XXX will operate its online
auction service provided for the AIM E-Commerce Service as currently found
at the URL "xxx.xxx.xxx";
"Business Day" means any day from Monday to Friday inclusive, except
statutory or civic holidays observed in Toronto, Ontario;
"Effective Date" has the meaning attributed thereto on the face page of
this Agreement;
"Joint Venture" means the Delaware company to be established and owned by
AIM to provide the AIM E-Commerce Service;
"Parties" means XXX.XXX and AIM collectively and "Party" means either of
them;
"Person" includes an individual, company, corporation, partnership,
government or government agency, authority or entity howsoever designated
or constituted;
"Reasonable Best Efforts" means that a party shall comply with the
obligation to which the covenant to use Reasonable Best Efforts applies in
all cases where such party has the ultimate discretion, control and ability
to do so, and that such party shall use commercially reasonable efforts to
comply with such obligation in cases where such party does not have such
ultimate discretion, control and ability;
"Registration Rights Agreement" means the agreement to be entered into
between the Parties providing for registration of the AIM stock;
"Territory" means the United States of America as presently constituted.
1.2 Headings.
The use of headings in this Agreement is for convenience of reference only
and shall not affect its interpretation.
1.3 Extended Meanings.
Words expressed in the singular include the plural and vice-versa and
words in one gender include all genders.
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1.4 Entire Agreement.
This Agreement, and any agreements and other documents to be delivered
pursuant to it (including without limitation the Registration Rights
Agreement), constitutes the entire agreement between the Parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, oral or written between the
Parties. The execution of this Agreement has not been induced by, nor do
either of the Parties rely upon or regard as material, any representations,
warranties, conditions, other agreements or acknowledgments not expressly
made in this Agreement or in the agreements and other documents to be
delivered pursuant hereto.
1.5 Currency.
Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in Canadian funds.
1.6 Invalidity.
If in any jurisdiction a provision contained in this Agreement is found by
a court of competent jurisdiction to be invalid, illegal or unenforceable
in any respect, the validity, legality or enforceability of the remaining
provisions contained herein, or of such provision in any other jurisdiction
affected or impaired thereby.
1.7 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein
and shall be treated, in all respects, as an Ontario contract. The Parties
hereby irrevocably submit to the exclusive jurisdiction of the courts of
Ontario in respect of the subject matter hereof.
1.8 Consent.
Wherever any Party is required to obtain consent from another Party, such
consent shall not be unreasonably withheld or delayed.
ARTICLE II
1.9 Acknowledgment.
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AIM acknowledges that XXX.XXX has completed the initial consulting
feasibility assessment and set up a demonstration site for the AIM E-
Commerce Service in accordance with its agreement in respect thereof and to
the satisfaction of AIM in all respects.
1.10 Aim Stock.
In consideration therefor, AIM shall forthwith issue to XXX.XXX the AIM
Stock and shall use its Reasonable Best Efforts to settle and execute the
Registration Rights Agreement by January 29, 1999, in default of which any
outstanding issues shall be submitted to and resolved by binding
arbitration in accordance with the process provided in Article 3
hereof.
ARTICLE III
1.11 Option to Purchase.
Until the AIM Stock becomes freely trading on a United States Stock
Exchange (satisfactory to XXX.XXX) in the hands of XXX.XXX or its assigns
and maintains an aggregate market value of not less than [Confidential
Information filed separately with the SEC] for a minimum of 30 consecutive
trading days on such exchange (as measured by the average trading price of
stock traded on each trading day) XXX.XXX shall have an option to acquire
[Confidential Information filed separately with the SEC] of the issued
stock of the Joint Venture for [Confidential Information filed separately
with the SEC]. Notwithstanding the foregoing, if XXX.XXX elects to exercise
the option, AIM shall have the ability to pay XXX.XXX [Confidential
Information filed separately with the SEC] in which event the option of
XXX.XXX under this Section shall be at an end and XXX.XXX shall forthwith
surrender the AIM Stock for cancellation.
ARTICLE IV
1.12 Confidentiality.
Each Party (hereinafter in this Section, the "Receiving Party") covenants
with the other Party (hereinafter in this Section, the "Disclosing Party")
that it shall keep confidential the Confidential Information of the
Disclosing Party to which the Receiving Party obtains access as a
consequence of entering into this Agreement and that it will take all
reasonable precautions to protect such Confidential Information from any
use, disclosure or copying except as expressly authorized by this
Agreement. The Receiving Party shall implement such procedures as the
Disclosing Party may reasonably require from time to time to improve the
security of the Confidential Information of the Disclosing Party in its
possession. This Section shall survive the termination of the Agreement.
Upon termination of this Agreement, the Receiving Party shall, at the
choice of the Disclosing Party, either return to the Disclosing Party or
destroy all copies or partial copies of Confidential Information of the
Disclosing Party in any form which is in the possession
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of the Receiving Party or under its control, and certify that all such
Confidential Information has been returned or otherwise destroyed.
ARTICLE V
ARBITRATION
1.13 Dispute Resolution Process.
If any dispute, disagreement, controversy or claim arising out of or
relating to this Agreement including, without limitation, its application,
interpretation, performance, breach, termination, enforcement or damages,
or remedies arising out of the breach of or non-compliance therewith, shall
be finally determined by arbitration before a single arbitrator to be
commenced and conducted in the English language in Toronto in accordance
with the Arbitration Act (Ontario). The Parties hereto agree that:
(a) subject to mutual agreement between the Parties to the contrary,
the arbitrator shall be a person who is legally trained and
trained as a professional arbitrator and who has a minimum of
five (5) years experience in the licensing of computer software;
(b) the Parties shall agree on the identity of the arbitrator within
10 days of notice of reference to arbitration and in default
thereof, either Party may apply to a Judge of the Supreme Court
of Ontario, General Division, to appoint an arbitrator with the
foregoing qualifications;
(c) the Parties shall be required to make written submissions to the
arbitrator within 7 days of appointment and shall not be entitled
to make verbal representations or further submissions unless so
requested by the arbitrator. Any Party who does not comply with
the foregoing time period shall not be entitled to make any
submissions without the written approval of the other Party;
(d) the arbitrator shall be required to render his decision in
writing within 10 days of the period mentioned in Subsection
5.1(c);
(e) neither of the Parties shall apply to the Courts of Ontario or
any other jurisdiction to attempt to enjoin, delay, impede or
otherwise interfere with
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or limit the scope of the arbitration or the powers of the
arbitrator provided for in the Arbitration Act (Ontario)
(f) the award of the arbitrator shall be a final and conclusive award
and judgment with respect to all matters properly before the
arbitral tribunal in accordance with the Arbitration Act
(Ontario) and neither Party shall appeal such award in any manner
whatever to any court, tribunal or other authority; and
(g) the award of the arbitral tribunal may be entered and enforced by
any court in any jurisdiction having jurisdiction over the
Parties hereto or the subject matter of the award or the
properties or assets of either of the Parties hereto.
ARTICLE VI
GENERAL
1.14 Notice.
Any notice or other communication (a "Notice") required or permitted to be
given or made hereunder shall be in writing and shall be well and
sufficiently given or made if:
(a) delivered in person during normal business hours on a Business Day and
left with a receptionist or other responsible employee of the relevant
Party at the applicable address set forth below;
(b) sent by prepaid first class mail; or
(c) sent by any electronic means of sending messages, including facsimile
transmission, which produces a paper record (an "Electronic
Transmission"), charges prepaid and confirmed by prepaid first class
mail;
in the case of a Notice to AIM addressed to it at:
American Interactive Media, Inc.
Xxxxx 000, 000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax No.: (000) 000-0000
with a copy to:
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Xxxxxx, Xxxxxx-Xxxxxxx,Colt & Mosle
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx,
101780061
Attention: Xxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
and in the case of a Notice to XXX.XXX addressed to it at:
XXX.XXX International Inc.
000 - 0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxx
Fax No.: (000) 000-0000
with a copy to:
Gowling, Strathy & Xxxxxxxxx
Barristers & Solicitors
Xxxxxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxxx
Fax No.: (000) 000-0000
Any Notice given or made in accordance with this Section 6.1 shall be deemed to
have been given or made and to have been received:
(a) on the day it was delivered, if delivered as aforesaid;
(b) on the fifth Business Day (excluding each day during which there
exists any general interruption of postal services due to strike,
lockout or other cause) after it was mailed, if mailed as aforesaid;
and
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(c) on the day of sending if sent by Electronic Transmission during normal
business hours of the addressee on a Business Day and, if not, then on
the first Business Day after the sending thereof.
Either Party may from time to time change its address for notice by giving
Notice to other Party in accordance with the provisions of this Section 6.1.
1.15 Assignment.
Neither Party may assign its rights and obligations under this Agreement,
in whole or in part, without the prior consent in writing of the other and
any purported assignment made without that consent is void and of no effect
(save and except for an assignment as an incident of security taken in a
normal course financing transaction). No assignment of this Agreement
shall relieve either party from any obligation under this Agreement.
1.16 Binding on Successors.
This Agreement shall enure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
1.17 Further Assurances.
Each Party agrees that upon the written request of the other Party, it will
do all such acts and execute all such further documents, conveyances,
deeds, assignments, transfers and the like, and will cause the doing of all
such acts and will cause the execution of all such further documents as are
within its power to cause the doing or execution of, as any other Party
hereto may from time to time reasonably request be done and/or executed as
may be necessary or desirable to give effect to this Agreement.
1.18 Independent Contractors.
It is understood and agreed that in giving effect to this Agreement, no
Party shall be or be deemed a partner, agent or employee of another Party
for any purpose and that their relationship to each other shall be that of
independent contractors. Nothing in this Agreement shall constitute a
partnership or a joint venture between the Parties. No Party shall have
the right to enter into contracts or pledge the credit of or incur expenses
of liabilities on behalf of the other Party.
1.19 Waiver.
A waiver by a Party hereto of any of its rights hereunder or of the
performance by the other Party of any of its obligations hereunder shall be
without prejudice to all of the
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other rights hereunder of the Party so waiving and shall not constitute a
waiver of any such other rights or, in any other instance, of the rights so
waived, or a waiver of the performance by the other Party of any of its
other obligations hereunder or of the performance, in any other instance,
of the obligations so waived. No waiver shall be effective or binding upon
a Party unless the same shall be expressed in writing and executed by the
Party to be bound.
1.20 Compliance With Law.
Each party shall, in the performance of this Agreement, fully comply with,
and abide by, all laws, regulations, regulatory rulings or directives,
court orders, and decisions of administrative tribunals of competent
jurisdiction, that may, in any manner or extent, concern, govern, or affect
either party's respective performance of, and obligations under, this
Agreement.
1.21 Interpretation.
This Agreement has been negotiated by the parties hereto and their
respective counsel and shall be fairly interpreted in accordance with its
terms and without any rules of construction relating to which party drafted
the Agreement being applied in favour or against either party.
1.22 Effective Date.
This Agreement shall not become a valid and binding contract unless and
until each party has duly executed and delivered this Agreement. For
greater certainty, there shall be no agreement, whether oral, written,
express, implied or otherwise notwithstanding any performance between the
parties concerning the subject matter of this document, including, without
limitation, by course of conduct, doctrine of part performance, or
otherwise.
1.23 Amendment.
No amendment of any provision of this Agreement shall be effective unless
such amendment is embodied in a written agreement which is: (i) expressly
stated to be intended to amend this Agreement; and (ii) executed by two
authorized signing officers of AIM and an authorized officer of XXX.XXX.
For greater certainty, the parties acknowledge and agree that no
representations, warranties, conditions, covenants or other statements or
commitments, whether made orally, in writing, by course of conduct or
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otherwise, and whether made prior to the Effective Date of this Agreement
or thereafter, shall be binding on either of the parties.
1.24 Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein
and shall be treated, in all respects, as an Ontario contract. The parties
hereby: (i) irrevocably submit to the exclusive jurisdiction of the courts
of Ontario in respect of the subject matter hereof; (ii) consent to service
of process being effected upon the other party by registered mail sent to
the address set forth in section 6.1 hereof; (iii) agree not to seek,
request, claim or pursue trial by jury; and (iv) agree not to seek,
request, claim or pursue any right, claim, or entitlement to any punitive
or exemplary damages whatsoever.
IN WITNESS WHEREOF this Agreement is executed by the Parties as of the date
first written, above.
XXX.XXX INTERNATIONAL INC.
By:
---------------------------------
(Duly Authorized Officer)
By:
---------------------------------
(Duly Authorized Officer)
AMERICAN INTERACTIVE MEDIA, INC.
By:
---------------------------------
(Duly Authorized Officer)
By:
---------------------------------
(Duly Authorized Officer)
CP Doc #: 124790-1
