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EXHIBIT 10.13
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of July, 1999.
BETWEEN:
FLONETWORK INC., 260 King Street East, Building C, Toronto, Ontario, a
corporation incorporated under the laws of Ontario (the "Employer" or
the "Company")
-and-
ERIC GOODWIN, of Lombardy, in the Province of Ontario
(the "Employee")
WHEREAS the Employer is an Internet based services company providing e-mail
marketing and delivery solutions and other products and services developed or
offered by the Employer and its affiliates from time to time (the "BUSINESS");
AND WHEREAS the Employer wishes to employ the Employee and the Employee wishes
to serve the Employer on the terms and conditions contained in this Agreement;
The parties agree, in consideration of the mutual covenants and conditions
contained herein, as follows:
1. DUTIES AND RESPONSIBILITIES OF EMPLOYEE
The Employee shall assume the position of Chief Executive Officer of the
Employer and shall have those responsibilities set forth in Schedule "A" hereto.
The Employee shall also serve as a member of the Board of Directors of the
Employer (the "Board"), subject to election or appointment to the Board by the
Employer's shareholders or directors (in accordance with applicable law) from
time to time, and shall report to the Board on the Business. In each such
capacity, the Employee shall perform all such duties and exercise all such
powers consistent with his obligations as may from time to time be assigned to
or vested in him by the Board.
2. DURATION
The term of this Agreement (the "Term") shall commence effective July 1, 1999
and shall continue until terminated in the manner contemplated in section 9
hereof.
3. STANDARD OF CARE
(a) The Employee shall devote all of his working time, attention and
ability to the Business and to the carrying out of his duties and
responsibilities hereunder.
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(b) During the continuance of his employment hereunder, the Employee shall
well and faithfully serve the Employer and shall use his best efforts
to promote the interests of the Employer.
(c) It is acknowledged that the Employee may, subject to the terms of the
Non-Competition Agreement and Intellectual Property Assignment dated
as of July 1, 1999 executed by the parties to this Agreement (the
"Non-Competition Agreement"), serve as a director of other companies
from time to time, provided that such positions do not impair the
Employee's ability to carry out his duties hereunder.
4. REMUNERATION
The remuneration of the Employee for his services hereunder shall be as set out
in Part I of Schedule "B" hereto, or such other remuneration as may from time to
time be mutually agreed upon in writing between the Employer and the Employee.
5. BENEFITS
The benefits of the Employee for his services hereunder shall be as set out in
Part II of Schedule "B" hereto.
6. VACATION
During the employment of the Employee hereunder, the Employee shall from time to
time be entitled to such vacations as are set out in Part III of Schedule "B"
hereto. Such vacations shall be taken at such time or times as the Employee
shall decide, provided that the Employee shall schedule his vacations with due
regard to the performance of his essential duties to the Employer pursuant to
the terms of this Agreement.
7. EMPLOYEE STOCK OPTIONS
(a) The Employee shall be eligible to participate in the employee stock
option plan of the Employer, as administered by the Board and on such
terms as shall from time to time be determined by the Board.
(b) On July 1, 1999, the Employee was granted stock options to purchase
common shares in the capital of the Employer on the terms set out in
the option agreement dated as of July 1, 1999 between the Employee and
the Employer (the "Non-Statutory Stock Option Agreement"). Such
options shall not form a part of the Employer's employee stock option
plan (the "ESOP") but shall nonetheless be administered in accordance
with the ESOP.
8. ANNUAL COMPENSATION REVIEW AND BUSINESS PLAN
An annual review of the compensation of the Employee provided for herein shall
be conducted by the Compensation Committee of the Board, taking into account
such contributing factors as shall reasonably be determined by the Compensation
Committee or the Board from time to time
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and communicated at the beginning of each fiscal year to the Employee. In
addition, the Employee shall present on an annual basis, by the end of the first
quarter of each fiscal year of the Employer, a business plan for the next
following fiscal year for approval by the Board. This plan shall serve both as a
guideline for operations of the Employer, and shall also be used, in part, as a
benchmark against which the Employee's performance can be assessed and
compensation determined.
9. TERMINATION
The employment of the Employee hereunder may be terminated in the following
manner or circumstances:
(a) at any time, without prior notice or payment in lieu of notice or
severance payment, by notice in writing from the Employer to the
Employee, for a reason which would in law permit an employer to
terminate the employment of an employee for cause, or upon receipt of
notice from the Employee that he has resigned from the employment;
(b) at any time without cause, by three months prior notice in writing
from the Employer to the Employee, or by payment of three month's
salary as provided for in section 4 hereof in lieu of notice and
severance payment including without limitation any entitlement under
the Employment Standards Act (Ontario);
(c) upon the death of the Employee, in which case the employment shall be
deemed to terminate on the date of death; and
(d) in the event of the bona fide illness, physical or mental, resulting
in the Employee being unable to devote his full time and attention to
the affairs of the Employer for six consecutive months (and in
calculating the six-month period of disability, unless and until the
Employee shall have returned to attending to the affairs of the
Employer on a full-time basis for 30 consecutive normal working days,
the said period of disability shall be deemed to have been continued
without interruption whatsoever), or the adjudication of the Employee
as a mental incompetent, in either of which cases notice in writing
from the Employer shall be sent to the Employee or his legal
representative and the Employee's employment shall be deemed to
terminate on the giving of such notice.
Upon any notice being given pursuant to subsections 9(a) or (b), upon payment of
the amount referred to in subsection (b), or upon the occurrence of an event
described in subsections 9(c) or (d), as the case may be (the "EFFECTIVE DATE OF
TERMINATION"), this Agreement and the employment of the Employee hereunder shall
be wholly terminated. The Employee acknowledges and agrees that, notwithstanding
the termination of his employment, however caused, the provisions of the
Non-Competition Agreement and the Non-Statutory Stock Option Agreement shall
remain in full force and effect in accordance with the terms thereof. Upon such
termination, the Employee have no claim against the Employer for damages or
otherwise except in respect of payment of remuneration earned, due and owing as
provided for in section 4 or in respect of other benefits to which the Employee
is entitled hereunder to and including the
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effective date of termination. For greater certainty, the termination of the
Employee pursuant to subsection 9(d) shall in no way affect any disability
benefits the Employee would otherwise be entitled to pursuant to the Employer's
Employee Benefits Plan.
The parties hereto acknowledge and agree that the payment referred to in
subsection 9(b) is a reasonable estimate of the damages that might be suffered
by the Employee for termination of this Agreement, the said amount being
liquidated damages and not a penalty.
10. NOTICES
Any notice under this Agreement shall be in writing and may be delivered (i) by
personal delivery, which shall made to the Chief Financial Officer of the
Employer in the case of the Employer; (ii) by registered or certified mail,
which shall be deemed duly delivered four business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid; or
(iii) by a reputable nationwide overnight courier service which shall be deemed
duly delivered one business day after it is sent for next-business day delivery
by such overnight courier service, in each case to the undersigned at 260 King
Street East, Building C, Toronto, Ontario, in the case of the Employer, and to
the last address of the Employee known to the Employer, in the case of the
Employee. Either party may change the address to which notices are to be
delivered by giving notice of such change to the other party in the manner set
forth this section 10.
11. INDEPENDENT LEGAL ADVICE
The Employee hereby acknowledges and agrees that the Employee has had full
opportunity to seek and receive independent legal advice with respect to this
Agreement and that if the Employee failed to seek or receive such independent
legal advice before signing this Agreement, shall not rely on such failure as a
defence to an argument that this Agreement, or any part of it, is valid or
enforceable.
12. ENTIRE AGREEMENT
This Agreement, except as otherwise specifically provided herein, represents the
entire agreement between the parties with respect to the subject matter hereof.
This Agreement may not be amended except by further agreement made in writing
between the parties.
13. GOVERNING LAW
This Agreement shall be deemed to have been made in and shall be construed in
accordance with the laws of the Province of Ontario and for the purposes of all
legal proceedings this Agreement shall be deemed to have been performed in such
province and the courts of such province shall have jurisdiction to entertain
any action arising under this Agreement; provided always that nothing contained
herein shall prevent the Employer from proceeding at its election against the
Employee in the courts of any other province or country.
14. MISCELLANEOUS
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It is agreed by and between the parties hereto that Schedules "A" and "B"
referred to herein, and annexed hereto, form an integral part of this Agreement
and this Agreement shall be construed as incorporating such Schedules. The terms
"HEREOF", "HEREIN", "HEREUNDER" and similar terms refer to this Agreement as a
whole and not to any specific provision or subdivision thereof. The terms
"AFFILIATE" and "PERSON" as used herein have the meanings ascribed thereto in
the Business Corporations Act (Ontario).
15. SUCCESSORS, ASSIGNS
The provisions hereof, where the context permits, shall ensure to the benefit of
and be binding upon the heirs, executors, administrators and legal personal
representatives of the Employee, and the successors and assigns of the Employer,
respectively. When the context so requires or permits, the masculine gender
shall be read as if the feminine or neuter genders were expressed.
16. COUNTERPARTS AND EXECUTION BY FACSIMILE
This Agreement may be executed by the parties in any number of separate
counterparts each of which, when so executed and delivered, shall be an
original, but all such counterparts shall together constitute one and the same
instrument. This Agreement may be executed and delivered by facsimile, provided
that actual executed copies of this Agreement shall be substituted forthwith
after execution for the copies executed by facsimile.
17. SEVERABILITY
If any provision of this Agreement is determined to be invalid or unenforceable
in whole or in part, such invalidity or unenforceability shall attach only to
such provision or part thereof and the remaining part of such provision and all
other provisions hereof shall continue in full force and effect.
IN WITNESS WHEREOF the Employer has executed this Agreement and the Employee has
hereunto set his hand and seal as of the date first above written.
FLONETWORK, INC.
By: /s/ Eric Goodwin
----------------------------
/s/ Wilson Lee ________________________________1/s
- -------------------------------
Witness ERIC GOODWIN
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SCHEDULE "A"
DUTIES AND RESPONSIBILITIES OF CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall perform such executive and managerial duties
and responsibilities customary to his offices and as are reasonably necessary to
the operations of the Employer and the Business as may be assigned to him from
time to time by or under authority of the Board. The Employee shall have primary
responsibility and authority for the general management, administration,
long-term planning and day-to-day operations of the Employer and the Business,
including without limitation: the development and implementation of the
Employer's annual operating and financial plan; the coordination of the internal
and external communications of the Employer; the development and implementation
of programs, policies and procedures designed to improve the overall
productivity, efficiency, and profitability of the Employer; and the hiring,
evaluation and termination of staff.
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SCHEDULE "B"
PART I - REMUNERATION
$200,000 per annum (base salary) in Canadian dollars.
The Company will also reimburse the Employee for all reasonable out-of-pocket
living expenses incurred by the Employee in connection with maintaining a second
residence in Toronto, subject to a maximum of $Cdn $30,000 per annum.
PART II - BENEFITS
The Employee shall be eligible to participate in all employee benefit plans of
the Employer made available to senior management of the Employer generally and
such other benefits as may be determined by the Board from time to time and
agreed to in writing by the Employer and the Employee.
PART III - VACATION
4 weeks per annum.
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NON-COMPETITION AGREEMENT AND
INTELLECTUAL PROPERTY ASSIGNMENT
TO: FloNetwork Inc.
(hereinafter referred to as "FLONETWORK")
WHEREAS the undersigned is an employee of FloNetwork and, effective as of
July 1, 1999, being the time of employment of the undersigned by FloNetwork, has
agreed to enter this Agreement to protect the confidential information,
intellectual property and other assets of FloNetwork;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and covenants contained herein and the receipt of five dollars and
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged by the undersigned), the undersigned hereby covenants and
agrees in favour of FloNetwork, as follows:
1. DEFINITIONS. For the purposes of this Agreement:
(a) "AFFILIATE" has the meaning ascribed thereto in the Business
Corporations Act (Ontario).
(b) "BUSINESS" means the business of the design, development and marketing
of e-mail marketing and delivery solutions and related services and
other products and services developed or offered by FloNetwork or its
Affiliates from time to time.
(c) "CONFIDENTIAL INFORMATION" means all secrets, trade secrets, know-how
and information (and all documents and other tangible items which
record information, whether in writing, in computer readable format or
otherwise), in each case relating to the Business or any person with
which FloNetwork does business, which is of a private, secret or
confidential nature or is not known generally to persons outside the
employ of FloNetwork or the person with which FloNetwork does
business, respectively, including without limitation, the following:
(i) all information relating to the Intellectual Property and the
products and services of FloNetwork;
(ii) all computer programs, either now existing or currently under
development, including algorithms, specifications, flow charts,
listings, source code and object code either owned by FloNetwork
or to which FloNetwork has access and which FloNetwork wishes or
is required to keep confidential;
(iii) all unpatented inventions, source code versions of software,
program and products specifications, production and quality
control manuals, prototypes, drawings, data, designs,
construction and operating techniques, analyses, compilations,
studies, processes, systems, photographs, models,
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operating manuals, created, invented or acquired by or licensed
to a person with which FloNetwork does business;
(iv) information relating to past, present and contemplated products,
techniques and modes of merchandising, marketing techniques,
manufacturing processes, procedures and know-how of FloNetwork;
(v) all financial information, all information relating to
marketing, and manufacturing, and marketing strategies of
FloNetwork or any person with which it does business;
(vi) information concerning the clients or customers and former
clients and customers of FloNetwork including their names,
customer lists and records; and
(vii) any information, process or idea that is proprietary to
FloNetwork or that FloNetwork is bound to hold confidential and
is not generally known outside of FloNetwork.
(d) "INTELLECTUAL PROPERTY" means all intellectual and industrial
property, including without limitation, financial, operating and
training ideas, copyrights, patents processes and materials, works of
expression, improvements, inventions, designs, computer programs and
any other creations, data, topographies, concepts and trade secrets,
the Confidential Information, and all intellectual and industrials
property rights, applications and registrations relating to the
foregoing, without limitation, all rights and trade secrets, patents,
industrial design and topography, registrations and copyrights, and
divisions, derivative applications, continuations, re-issues,
re-examinations, extensions and reversions and rights of priority
resulting from the filing of applications, including without
limitation all Developments (as defined in Section 6), which are
related to the past, current, future, actual or anticipated business,
products, services, manufacturing or research and development
activities of FloNetwork or its Affiliates, either solely or in
concert with third parties.
2. NON-COMPETITION. The undersigned shall not, without the prior written
consent of FloNetwork, at any time during the term of the undersigned's
employment with FloNetwork or within the period of two years following the
date of termination thereof, either individually or in partnership or in
conjunction with any person, whether as principal, agent, shareholder,
director, officer, employee, investor, lender, advisor, consultant or in
any other manner whatsoever, directly or indirectly, advise, manage, carry
on, be engaged in, be interested in, be concerned with, invest in, or lend
money to, or guarantee debts or obligations of, or permit the undersigned's
name or any part thereof to be used or employed by any person, managing,
carrying on, engaged in, interested in, or concerned with a business which
is in any way competitive to or in competition with the Business as
currently carried on or as proposed by FloNetwork to be carried on after
the date hereof by FloNetwork or its Affiliates. The foregoing shall not
prevent the undersigned (i) from purchasing as a passive investor up to 1%
of the outstanding shares
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or other securities of any class of any publicly-held issuer to which are
attached not more than 1% of all votes attaching to all voting securities
of such issuer.
3. CUSTOMERS. The undersigned shall not, at any time during the term of the
undersigned's employment with FloNetwork or within the period of two years
following the date of termination thereof, either individually or in
partnership or in conjunction with any person, whether as principal, agent,
shareholder, director, officer, employee, investor, advisor, consultant or
in any other manner whatsoever, directly or indirectly, engage in the
solicitation of and/or sale to any the customers of FloNetwork or its
Affiliates of any products or services of the type sold by the Business
carried on or as proposed by FloNetwork to be carried on after the date
hereof by FloNetwork or its Affiliates.
4. EMPLOYEES. The undersigned shall not, during the term of the undersigned's
employment with FloNetwork or within a period of two years following the
date of termination thereof, either individually or in partnership or in
conjunction with any person, whether as principal, agent, shareholder,
director, officer, employee, investor, advisor, consultant or in any other
manner whatsoever, directly or indirectly, attempt to induce or persuade
any employee employed by FloNetwork or its Affiliates to leave such employ,
nor solicit for employment or employ, or hire or engaged as an independent
contractor, any such employee.
5. CONFIDENTIAL INFORMATION. The undersigned shall not, during the term of the
undersigned's employment with FloNetwork or within a period of two years
following the date of termination thereof, either individually or in
partnership or in conjunction with any person, whether as principal, agent,
shareholder, director, officer, employee, investor, advisor, consultant or
in any other manner whatsoever, directly or indirectly, disclose or use,
publish or seek to protect for any purposes other than those of the
Business, any Confidential Information however obtained by the undersigned,
and the undersigned agrees to return to FloNetwork promptly following the
date hereof, all documents, copies, records and other materials in the
possession or under the control of the undersigned which pertain to the
Confidential Information or to the Business generally. Notwithstanding,
this Section 5 shall not apply to information became readily available to
the public after the time such Confidential Information was made available
to the undersigned other than through a breach of this Agreement.
6. ASSIGNMENT OF INTELLECTUAL PROPERTY.
(a) The undersigned will make full and prompt disclosure to FloNetwork of
all inventions, improvements, discoveries, methods, developments,
software, works of authorship, whether patentable or not, which are
created, made, conceived or reduced to practice by him or her or under
his or her direction or jointly with others during his or her
employment by FloNetwork, whether or not during normal working hours
or on the premises of FloNetwork (all of which collectively referred
to in this Agreement as "Developments").
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(b) The undersigned, without further consideration from FloNetwork,
hereby:
(i) disclaims all interest in and to the Intellectual Property;
(ii) assigns all the undersigned's right, title and interest in and
to all Intellectual Property and any application filed therefor
to FloNetwork;
(iii) confirms that any work done by the undersigned for FloNetwork
prior to his or her employment by FloNetwork relating in any way
to the conception, design, development or support of products or
services for FloNetwork constitutes Intellectual Property which
is the property of FloNetwork;
(iv) agrees not to incorporate or permit to be incorporated any
intellectual property rights of the undersigned into any
products or services of FloNetwork without FloNetwork's prior
written consent;
(v) agrees to execute all instruments and papers, and perform all
acts necessary including, but not limited to, assisting
FloNetwork in obtaining any type of Intellectual Property
protection throughout the world as may be reasonably considered
necessary or desirable by FloNetwork at the expense of
FloNetwork;
(vi) agrees to return to FloNetwork promptly following the date
hereof all expressions of data and information related to the
Intellectual Property and agrees that all records, documentation
and expressions are and shall remain the property of FloNetwork;
and
(vii) represents that the undersigned's performance of the terms of
this Agreement does not and will not breach any other agreement
to keep in confidence proprietary information acquired by the
undersigned, and the undersigned has not entered into, and
agrees not to enter into, any agreement (whether oral or
written) in conflict herewith.
7. GOVERNMENT OBLIGATIONS. The undersigned acknowledges that FloNetwork from
time to time may have agreements with other parties or with government
bodies, or agencies thereof, which impose obligations or restrictions on
FloNetwork regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The
undersigned agrees to be bound by all such obligations and restrictions
which are made known to the undersigned and to take all appropriate action
necessary to discharge the obligations of FloNetwork under such agreements.
8. WAIVER OF MORAL RIGHTS. The undersigned agrees to waive any and all moral
rights in the Intellectual Property arising under the Copyright Act
(Canada), as amended, or similar legislation and/or any rights to similar
effect in any country or at common law that the undersigned or any agent
performing services on behalf of the undersigned hereunder, may have with
respect to the Intellectual Property, including but not limited to the
right to the integrity of the Intellectual Property, the right to
attribution of authorship, the right to
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restrain any distortion, mutilation or other modification of the
Intellectual Property and the right to permit any use of the Intellectual
Property in association with a product, service, cause or institution that
may be prejudicial to the honour or reputation of the undersigned
(collectively the "Moral Rights"). Without limiting the foregoing, the
undersigned grants to FloNetwork the right to edit, adapt and in any other
way modify and translate the Intellectual Property, including without
limitation the right to produce or reproduce part of the Intellectual
Property or any derivative work based thereon, and the right to use the
Intellectual Property in association with all products, services, causes
and institutions. The undersigned agrees that anything which FloNetwork may
do with the Intellectual Property does not or will not constitute any
prejudice to the undersigned's honour or reputation. Further, the
undersigned hereby transfers its right to restrain any violation of Moral
Rights in the Intellectual Property including any distortion, mutilation or
other modification of the Intellectual Property, to FloNetwork, or, failing
the ability to transfer such right, the undersigned hereby irrevocably
appoints FloNetwork as the undersigned's agent to enforce its right to
restrain any violation of the Moral Rights at the expense of FloNetwork and
the complete indemnification of the undersigned.
9. UNITED STATES COPYRIGHT LAW. For the purposes of the United States of
America, the undersigned confirms that the Intellectual Property was
specially ordered or commissioned by, and was authored under the direction,
control and supervision of, FloNetwork and is one of the works enumerated
in the United States Copyright Law of 1976 as, and shall be considered as,
a "work made for hire" within the meaning of the copyright laws of the
United States, and that FloNetwork is entitled to the entire right, title
and interest in and to the copyright in the United States. If, however, the
Intellectual Property is not deemed a "work made for hire" under the United
States Copyright Law, the undersigned shall be bound by the provision; of
the assignment herein in respect of the United States of America.
10. REMEDIES FOR BREACH. The undersigned recognizes that a breach of any of the
covenant contained herein would result in substantial and irreparable
damages to FloNetwork and that FloNetwork could not adequately be
compensated for such damages by monetary award alone. Accordingly, the
undersigned agrees that in the event of any such breach, in addition to any
other remedies available to FloNetwork at law or otherwise, FloNetwork
shall each be separately entitled as a matter of right to apply to a court
of competent jurisdiction for relief by way of injunction, restraining
order, decree or otherwise as may be appropriate to ensure compliance by
the undersign with the provisions of this Agreement. Any remedy expressly
set forth in this Agreement shall be in addition to and not inclusive of or
dependent upon the exercise of any other remedy available to FloNetwork at
law or otherwise.
11. COVENANTS. The undersigned agrees and acknowledges that the covenants and
provisions contained in this Agreement are in addition to, and not in
replacement of, any similar covenants and provisions provided in any other
agreement relating to the subject matter hereof.
12. REASONABLENESS OF RESTRICTIONS. The undersigned agrees that (a) all
restrictions in the Agreement are necessary for the protection of the
business and goodwill of FloNetwork
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and are reasonable and valid, and all defences to the strict enforcement
thereof by FloNetwork are hereby waived by the undersigned, and (b) the
time periods and geographic scope of the provisions hereof are reasonable
and valid.
13. SEVERABILITY. Each covenant and provision contained in this Agreement shall
severable, separate and distinct and the unenforceability in whole or in
part of any covenant or provision hereof shall be deemed not to affect or
impair the validity or enforceability of any other covenant or provision
hereof
14. NOTICES. Any notice under this Agreement shall be in writing and may be
delivered (i) by personal delivery, which delivery shall be made to the
Chief Financial Officer of FloNetwork in the case of FloNetwork; (ii) by
registered or certified mail, which shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return
receipt requested, postage prepaid; or (iii) by a reputable nationwide
overnight courier service which shall be deemed delivered one business day
after it is sent for next-business day delivery by such overnight courier
service, in each case to FloNetwork at 260 King Street East, Building C,
Toronto, Ontario, in the case of FloNetwork, and to the last address of the
undersigned known to FloNetwork, in the case of the undersigned. Either
party may change the address to while notices are to be delivered by giving
notice of such change to the other party in the manners forth this Section
14.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all prior agreements and understandings, whether
written or oral, relating to the subject matter of this Agreement.
16. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both FloNetwork and the undersigned.
17. FURTHER ASSURANCES. The undersigned shall, from and after the date hereof
as requested by FloNetwork, from time to time, do and execute or cause to
be made, done and executed all such further acts, deeds and assurances as
may reasonably be considered necessary or desirable by FloNetwork to effect
the purpose of this Agreement and to carry out its provisions.
18. EXTENDED MEANINGS. In this Agreement, words importing the singular number
include the plural and vice-versa and words importing the masculine gender
include the feminine and neuter genders.
19. ATTORNMENT. The undersigned agrees (i) that any action or proceeding
relating to this Agreement may be brought in any court of competent
jurisdiction in the Province of Ontario, and for that purpose now
irrevocably and unconditionally attorns and submits to the jurisdiction of
such Ontario court; (ii) not to oppose any such Ontario action or
proceeding on the basis of forum non conveniens or for any other reason;
and (iii) not to oppose the enforcement against it in any other
jurisdiction of any judgment or order duly obtained from an Ontario court
contemplated by this Section.
20. WAIVERS. No delay or omission by the Company in exercising any right under
the Agreement shall operate as a waiver of that or any other right. A
waiver or consent given
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by the Company on any one occasion shall be effective only in that instance
and shall not be construed as a bar or waiver of any right on any other
occasion.
21. SUCCESSORS AND ASSIGNMENT. This Agreement shall enure to the benefit of,
and be binding on, the parties hereto and their respective heirs,
executors, administrators, successor's and legal representatives.
FloNetwork may assign its rights hereunder to any person without the
consent of the undersigned and, upon such assignment, this Agreement shall
enure to the benefit of and be binding upon any such respective assign of
FloNetwork.
22. INDEPENDENT LEGAL ADVICE. The undersigned hereby acknowledges and agrees
that undersigned has had full opportunity to seek and receive independent
legal advice with respect to this Agreement and that if the undersigned
failed to seek or receive such independent legal advice before signing this
Agreement, shall not rely on such failure as a defence to an argument that
this Agreement, or any part of it, is valid or enforceable.
23. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Ontario and the federal laws of Canada
applicable therein.
DATED as of the 1st day of July, 1999.
SIGNED, SEALED AND DELIVERED )
in the presence of )
)
)
)
/s/ Wilson Lee ) /s/ Eric Goodwin
- ------------------------------------ -------------------------------
Name: Eric Goodwin
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