Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made effective this 9th day of September, 2013.
BETWEEN:
JOSEPH FEWER, DOING BUSINESS AS HACIENDA ACRES, of 7123 Hacienda Road,
RR #6, Aylmer, Ontario, N5H 2R5;
("Fewer")
OF THE FIRST PART
AND:
LISBOA LEISURE, INC., a company incorporated pursuant to the laws of
Nevada with an office located at H 16/B, Adsulim, Benaulim, Goa,
India, 403716;
("Lisboa")
OF THE SECOND PART
WHEREAS:
A. Fewer is the owner of a 100% interest in the intellectual property described
Schedule "A" hereto, as well as all related assets necessary for operating a
plant growth enhancement product manufacture and sales business as a going
concern (collectively, "the Assets");
B. Fewer has agreed to sell and transfer the Assets to Lisboa and Lisboa has
agreed to purchase the Assets from Fewer upon the following terms and
conditions; and
C. Upon execution of this Agreement, Lisboa will forthwith incorporate a new
corporation (the "Subsidiary") that will act as a subsidiary for the operation
of the plant growth enhancement product manufacture and sales business
contemplated by this Agreement and will own the Assets.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual agreements and covenants herein contained, the parties
hereby covenant and agree as follows:
1. FEWER'S REPRESENTATIONS
Fewer represents and warrants to Lisboa now and at the Closing Date that:
(a) Fewer has good and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth and to transfer
the legal title and beneficial ownership of the Assets to the
Subsidiary;
(b) the performance of this Agreement will not be in violation of any
Agreement to which Fewer is a party, whether written or verbal, and
will not give any person or company any right to terminate or cancel
any agreement or any right enjoyed by Fewer and will not result in the
creation or imposition of any lien, encumbrance or restriction of any
nature whatsoever in favour of a third party upon or against the
Assets;
(c) Fewer has good and marketable title to the Assets, all of which are
free and clear of all liens, charges and encumbrances, and are in the
possession of or under the control of Fewer;
(d) there has been no act of God, damage, destruction, loss, labour
disruption or trouble, or other event (whether or not covered by
insurance) materially and adversely affecting any of the Assets or the
organization, operations, affairs, business, properties, prospects or
financial condition or position of Fewer's business operations;
(e) Fewer holds, and shall transfer to the Subsidiary at the Closing Date,
all permits, licences, registrations and authorizations necessary to
own and operate the Assets and carry on its business;
(f) Fewer has not, directly or indirectly, engaged or entered into any
transaction or incurred any liability or obligation which might
materially and adversely affect any of the Assets;
(g) there is no known indebtedness of Fewer to any person which might, by
operation of law or otherwise, now or hereafter constitute or be
capable of forming an encumbrance upon any of the Assets and there is
no known indebtedness of any kind whatsoever relating to the business
in respect of which the Subsidiary may become liable on or after the
Closing Date;
(h) no known action, suit, judgment, investigation, inquiry, assessment,
reassessment, litigation, determination or administrative or other
proceeding or arbitration before or of any court, arbitrator or
governmental authority is in process, or pending or threatened,
against or relating to Fewer's Assets and no known state of facts
exists which could constitute the basis therefor;
(i) all tangible rights, assets and properties comprising the Assets are
free from material defect, are in good condition and repair and (where
applicable) are in proper working order, having regard to the use and
age thereof;
2
(j) there is no known written, oral or implied agreement, option,
understanding or commitment or any right or privilege capable of
becoming any of the same, for the purchase from Fewer of his Assets,
other than purchase orders accepted by Fewer in the usual and ordinary
course of the operation of his business; and
(k) none of the Assets is in any respect infringing the right of any
person under or in respect of any patent, design, trade mark, trade
name, copyright or other industrial or intellectual property.
2. LISBOA'S REPRESENTATIONS
Lisboa represents and warrants to Fewer now and at the Closing Date that:
(a) Lisboa is a corporation duly incorporated, validly existing and in
good standing under the laws of Nevada and is a United States
reporting company; and
(b) Lisboa is in good standing with the U.S. Securities & Exchange
Commission (the "Commission"). All of Lisboa's filings submitted to
the Commission are true and accurate as at the date of such filing;
and
(c) Lisboa has good and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth.
3. EFFECT OF REPRESENTATIONS
3.1 The representations and warranties of Fewer and Lisboa (the "Parties") set
out above form a part of this Agreement and are conditions upon which the
Parties have relied in entering into this Agreement and shall survive the
acquisition of the Assets by Lisboa.
4. PURCHASE AND SALE OF ASSETS
For the mutual valuable consideration set forth in this paragraph, the Parties
hereby agree as follows:
4.1 Forthwith upon execution of this Agreement, Lisboa shall take steps to
incorporate the Subsidiary.
4.2 Fewer hereby agrees to sell and transfer to the Subsidiary a 100% right,
interest, and title to the Assets in consideration of Lisboa issuing to Fewer,
or any other parties designated by Fewer, an aggregate of 12,500,000 post-split
shares of restricted common stock in the capital of Lisboa.
4.3 The Parties hereby agree that they will cause the Subsidiary to execute a
consulting agreement with Fewer in the form attached hereto as Schedule "B" (the
"Consulting Agreement") on the Closing Date.
3
5. CLOSING
The sale and purchase of the Assets shall be closed at the office of Hacienda
Acres (Ontario time) on October 15, 2013 or on such other date or at such other
place as may be agreed upon by the parties (the "Closing Date" or "Closing").
6. ACTIONS BY THE PARTIES PENDING CLOSING
From and after the date hereof and until the Closing Date, the Parties covenant
and agree that:
(a) Lisboa, and its authorized representatives, shall have full access
during normal business hours to all documents of Fewer relating to the
Assets and shall have full access to inspect the Assets, and Fewer
shall furnish to Lisboa or its authorized representatives all
information with respect to the Assets as Lisboa may reasonably
request;
(b) Fewer, and his authorized representatives, shall have full access
during normal business hours to all documents relating to Lisboa's
affairs that Fewer may reasonably request; and
(c) Fewer shall not enter into any contract or commitment to purchase or
sell any interest in the Assets without the prior written consent of
Lisboa.
7. CONDITIONS PRECEDENT TO FEWER'S OBLIGATIONS
Each and every obligation of Fewer to be performed on the Closing Date shall be
subject to the satisfaction by the Closing Date of the following conditions,
unless waived in writing by Fewer:
(a) The representations and warranties made by Lisboa in this Agreement
shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made or
given by the Closing Date;
(b) Lisboa shall have completed a forward split of its common stock such
that every share of pre-split common stock shall be exchanged for 25
post-split shares of common stock;
(c) Lisboa shall have changed its name to "GroGenesis, Inc.", or such
other name acceptable to Fewer;
(d) Lisboa shall deliver to Fewer:
(i) a copy of resolutions of Lisboa's Board of Directors authorizing
the execution of this Agreement and the acquisition of the
Assets;
4
(ii) copies of the incorporation documents for the Subsidiary;
(iii) a share certificate representing 12,500,000 post-split shares of
common stock in the capital of Lisboa issued in the name of
Fewer, or any other nominees that Fewer designates; and
(iv) a copy of a current report on Form 8-K that includes pro forma
financial statements showing Lisboa's financial position upon
completion of its acquisition of the Assets; and
(v) an executed copy of the Consulting Agreement.
8. CONDITIONS PRECEDENT TO LISBOA'S OBLIGATIONS
Each and every obligation of Lisboa to be performed on the Closing Date shall be
subject to the satisfaction by the Closing Date of the following conditions,
unless waived in writing by Lisboa:
(a) The representations and warranties made by Fewer in this Agreement
shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made or
given by the Closing Date; and
(b) Fewer shall deliver to Lisboa
(i) a bill of sale evidencing the sale and transfer of title to the
Assets to the Subsidiary; and
(ii) an executed copy of the Consulting Agreement.
9. SUBSIDIARY DIRECTORS AND MANAGEMENT
The Parties hereto shall cause the initial director of the board of the
Subsidiary to be Steven Moseley who will also act as the President, Chief
Executive Officer, and Secretary of the Subsidiary.
10. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts and execute and
deliver all such further deeds and documents as shall be reasonably required in
order to fully perform and carry out the terms and intent of this Agreement.
5
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date between the parties
hereto and supersedes every previous agreement, communication, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the parties with respect to the
subject of this Agreement.
12. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
13. TITLES AND RECITALS
The titles to the respective sections hereof shall not be deemed a part of this
Agreement but shall be regarded as having been used for convenience only. The
Parties intend the recitals to this Agreement to be binding and effective terms
of this Agreement.
14. SEVERABILITY
If any one or more of the provisions contained herein should be invalid, illegal
or unenforceable in any respect in any jurisdictions, the validity, legality and
enforceability of such provisions shall not in any way be affected or impaired
thereby in any other jurisdiction and the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
15. APPLICABLE LAW
The situs of the Agreement is Aylmer, Ontario, and for all purposes this
Agreement will be governed exclusively by and construed and enforced in
accordance with laws prevailing in the Province of Ontario. The parties agree to
attorn to the jurisdiction of the Courts of the Province of Ontario.
17. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
6
IN WITNESS WHEREOF this Agreement has been executed as of the day and year first
above written.
LISBOA LEISURE INC.
/s/ Joseph Fewer per: /s/ Maria Fernandes
------------------------------- ---------------------------------
JOSEPH FEWER in his personal Authorized Signatory
capacity and doing business as
Hacienda Acres
7
SCHEDULE "A"
TO THAT CERTAIN AGREEMENT MADE AS OF SEPTEMBER 9TH, 2013
BETWEEN JOSEPH FEWER DOING BUSINESS AS HACIENDA ACRES
AND LISBOA LEISURE INC.
The intellectual property described in Recital "A" to this Agreement and forming
part of the Assets is more particularly described by the following patent
application filed with the United States Patent and Trademark Office:
United States provisional patent application number 61/897,584 - "Composition
and Method for Enhancing Plant Growth"
8
SCHEDULE "B"
TO THAT CERTAIN AGREEMENT MADE AS OF SEPTEMBER 9TH, 2013
BETWEEN JOSEPH FEWER DOING BUSINESS AS HACIENDA ACRES
AND LISBOA LEISURE INC.
9
1. CONSULTING AGREEMENT
THIS AGREEMENT dated as of the o, 2013.
BETWEEN:
GROGENESIS INC., a company incorporated pursuant to the laws of USA,
an office located at 8810 Hwy 79 North, Springville, Tennessee, 38256;
(the "Company")
AND:
JOSEPH FEWER, having an address at 7123 Hacienda Road, RR #6, Aylmer,
Ontario, N5H 2R5;
(the "Consultant")
WHEREAS:
A. The Company wishes to obtain the services of the Consultant who will be
involved in the production, marketing, and sales of the Company's products; and
B. The Consultant is qualified to undertake the duties outlined in this
Agreement;
THEREFORE in consideration of the foregoing recitals and of the mutual
promises, covenants and agreements hereinafter set forth, the parties promise,
covenant and agree that:
2. CONSULTANCY
(a) Position
(i) The Company hereby retains the Consultant to supervise and manage
operations on a full-time basis.
(b) Term
(i) The term of this Agreement shall commence on the date that
GroGenesis, Inc. ("GroGenesis"), the parent corporation of the
Company, raises a minimum sum of US$500,000 for the Company's
operations and shall continue until it is terminated in
accordance with this Agreement.
10
(c) Duties
(i) The Consultant shall perform such duties and render such services
as and when prescribed by the Board of Directors of the Company
or GroGenesis (the "Boards") and in accordance with such
instructions and directions of the Board as are lawfully assigned
or communicated to him and as are consistent with the position of
President and of manager of operations. The Consultant shall
perform such duties on behalf of Company and, as directed by the
Board.
(ii) The Consultant understands that the Consultant is retained on a
full-time basis with Company. Throughout the term of this
Agreement, the Consultant shall:
I. diligently, honestly and faithfully serve Company and shall
use his best efforts to promote and advance the interests
and goodwill of Company;
II. conduct himself at all times in a manner which is not
prejudicial to Company interests;
III. except as permitted in this Agreement or authorized by the
Board in writing, devote all of his business time to the
business and affairs of Company;
IV. refrain from engaging in any activity which shall in any
manner, directly or indirectly, compete with the trade or
business of Company; and
V. without the consent in writing of the Board, not acquire,
directly or indirectly, any interest in a firm, partnership,
association or corporation, the business and operations of
which in any manner, directly or indirectly, compete with
the trade or business of Company other than publicly traded
stocks representing not more than 10% of any such firm,
partnership, association or corporation.
3. REMUNERATION
(a) Salary
(i) During the currency of this Agreement, the Company shall pay to
the Consultant a monthly salary of $7,000 (the "Salary") for all
hours worked. The Salary shall be payable monthly in advance.
(ii) The Company shall have the right to deduct and withhold from the
Consultant's compensation any amounts required to be deducted and
remitted under any applicable local, domestic or other laws of
general application to the consultancy relationship. The
Consultant shall have the right to charge the company any
applicable taxes, including Goods & Services Tax or Harmonized
Sales Tax.
11
(b) Reimbursement of Expenses
(i) The Company shall reimburse the Consultant for all reasonable
travel, promotional and other business expenses actually and
properly incurred by the Consultant in the performance of his
duties for the Company.
4. TERMINATION OF CONSULTANCY
(a) Termination by Consultant
(i) The Consultant may terminate this Agreement by giving 90 days
written notice of resignation to Company. At the time the
Consultant provides the Company with notice of resignation, or at
any time thereafter, the Company shall have the right to elect to
terminate the this Agreement at any time prior to the end of the
effective date of the Consultant's resignation, and upon such
election, shall provide to the Consultant a lump sum equal to 30
days of the Salary or to such proportion of the 30 days that
remain outstanding at the time of the election and shall continue
to provide only those benefits that Company is permitted or able
to provide under the applicable rules of the relevant plans for
the lesser of 30 days or the period of time that remains
outstanding at the time of the Company's election.
(b) Termination by Company Without Cause
(i) The Company may immediately terminate this Agreement without
cause at any time by providing the Consultant with a written
notice of termination together with a lump sum payment in an
amount equal to six month's Salary.
(ii) The Consultant agrees that the Consultant shall not be entitled,
to any remuneration, compensation or other benefits other than
those expressly provided for in this Agreement.
(c) Termination by Company for Just Cause
(i) Notwithstanding any other provision of this Agreement, the
Company may on written notice to the Consultant immediately
terminate this Agreement with the Company at any time for
"cause", without notice or payment in lieu of notice or any other
form of compensation, severance pay or damages.
(ii) For the purposes of this Agreement, "cause" has the meaning
commonly ascribed to the phrase "cause" or "just cause for
termination" in the courts of the Province of Ontario, and
without limiting the foregoing, includes any of the following
acts or omissions:
I. the wilful failure of the Consultant to follow the
instructions of the Company;
II. the wilful failure of the Consultant to perform the
reasonable duties assigned to him by the Company;
12
III. the Consultant's misconduct, dishonesty, or any material
violation of the Company's policies and procedures in effect
from time to time;
IV. the material breach or non-observance of any of the
provisions of this Agreement by the Consultant;
V. any breach of Sections 5 and 6 of this Agreement; or
VI. any conduct of the Consultant which tends to bring him or
the Company into disrepute and which is not corrected within
a reasonable time after the Company gives written notice to
the Consultant specifying the conduct.
5. CONFIDENTIALITY AND OWNERSHIP OF COMPANY PROPERTY
(a) Confidential and Proprietary Information
(i) The Consultant acknowledges that, by reason of the Consultant's
position with the Company, the Consultant will have access to
Confidential and Proprietary Information, as hereinafter defined,
of the Company, that the Company has or will spend time, effort
and money to develop and acquire.
(ii) The term "Confidential and Proprietary Information" as used in
this Agreement means all trade secrets, proprietary information
and other data or information (and any tangible evidence, record
or representation thereof) whether prepared, conceived or
developed by an Consultant or agent of the Company (including the
Consultant) or received by the Company from an outside source
which is maintained in confidence by the Company or any of its
customers. Without limiting the generality of the foregoing,
Confidential and Proprietary Information includes information of
the Company pertaining to:
I. business improvements and processes; marketing and selling
plans; business opportunities, plans (whether pursued or
not) and budgets; unpublished financial statements;
licenses; pricing, pricing strategy and cost data;
information regarding the skills and compensation of
Consultants; the identities of clients and potential
clients, customers and potential customers (collectively,
"Customers"); the identities of contact persons at
Customers; the preferences and needs of Customers;
information regarding sales calls, timing, sales terms,
service plans, methods, practices, strategies, forecasts,
know-how, and other marketing techniques; the identities of
key accounts, potential key accounts; the identities of
suppliers and Consultants, and all information about those
13
supplier and Consultant relationships; research and
development plans or projects, data and reports; computer
materials such as programs, instructions, source and object
code, and printouts; formulas, inventions, developments and
discoveries; and product information, including testing
information;
II. any information relating to the relationship of the Company
with any personnel, suppliers, principals, investors,
contacts or prospects of the Company and any information
relating to the requirements, specifications, proposals,
orders, contracts or transactions of or with any such
persons; and
III. financial information, including the Company's costs,
financing or debt arrangements, income, profits, salaries or
wages.
(iii) The Consultant acknowledges that the Confidential and
Proprietary Information is a valuable and unique asset of the
Company and that the Confidential and Proprietary Information is
and will remain the exclusive property of the Company.
(iv) The Consultant agrees to maintain securely and hold in strict
confidence all Confidential and Proprietary Information received,
acquired or developed by the Consultant or disclosed to the
Consultant as a result of or in connection with the Consultant's
position with the Company. The Consultant agrees that, both
during his relationship with the Company and after the
termination of this Agreement, the Consultant will not, directly
or indirectly, divulge, communicate, use, copy or disclose or
permit others to use, copy or disclose, any Confidential and
Proprietary Information to any person, except as such disclosure
or use is required to perform his duties hereunder or as may be
consented to by prior written authorization of the Board.
(v) The obligation of confidentiality imposed by this Agreement shall
not apply to information that appears in issued patents or
printed publications, that otherwise becomes generally known in
the industry through no act of the Consultant in breach of this
Agreement, or that is required to be disclosed by court order or
applicable law.
(vi) The Consultant understands that the Company has from time to time
in its possession information belonging to third parties or which
is claimed by third parties to be confidential or proprietary and
which the Company has agreed to keep confidential. The Consultant
agrees that all such information shall be Confidential and
Proprietary Information for the purposes of this Agreement.
14
(vii) The Consultant represents and warrants that the Consultant has
not brought and will not bring with the Consultant to the
Company, and that the Consultant has not used and will not use,
while performing the Consultant's duties for the Company, any
materials or documents of a former company which the Consultant
is under a duty not to disclose. The Consultant understands that,
while retained by the Company, the Consultant shall not breach
any obligation or confidence or duty the Consultant may have to a
former Company and the Consultant agrees that the Consultant will
fulfil all such obligations during the Consultant's relationship
with the Company.
(viii) The Consultant represents and warrants that the Consultant will
not, to the best of the Consultant's knowledge and belief, use or
cause to be incorporated in any of the Consultant's work product
any information, designs, techniques or know-how which the
Consultant or the Company does not have the right to use.
(b) Ownership and Disclosure of Discoveries, Ideas and Inventions
(i) Any new technology, knowledge or information developed by the
Consultant related to the business of the Company during the term
of this Agreement shall be the exclusive property of the Company
to the extent that such technology, knowledge or information is
owned by the Consultant.
(ii) The Consultant acknowledges that all Confidential and Proprietary
Information and all other discoveries, know-how, inventions,
ideas, concepts, processes, products, protocols, treatments,
methods, tests and improvements, computer programs, or parts
thereof, conceived, developed, reduced to practice or otherwise
made by the Consultant either alone or with others, during the
course of the Consultant's relationship with the Company pursuant
to this Agreement or any previous agreements or arrangements
between the Consultant and the Company, whether or not conceived,
developed, reduced to practice or made during the Consultant's
regular working hours or on the premises of the Company
(collectively "Inventions"), and any and all services and
products which embody, emulate or employ any such Inventions will
be the sole property of the Company and all copyrights, patents,
patent rights, trademarks, service marks and reproduction rights
to, and other proprietary rights in, each such Invention, whether
or not patentable or copyrightable, will belong exclusively to
the Company.
(iii) The Consultant represents and warrants that the Consultant does
not claim rights in, or otherwise exclude from this Agreement,
any Inventions.
(iv) The Consultant shall disclose promptly to the Company, its
successors or assigns, any Inventions.
(v) The Consultant hereby assigns and agrees to assign all his
rights, title and interest in the Inventions, to the Company or
its nominee.
15
(vi) Whenever requested to do so by the Company, the Consultant shall
execute any and all applications, assignments or other
instruments which the Company shall deem necessary to apply for
and obtain patents or copyrights of Canada, the United States or
any foreign country or to otherwise protect the Company's
interest in the Inventions and shall assist the Company in every
proper way (entirely at the Company's expense, including
reimbursement to the Consultant for all expense and loss of
income) to obtain such patents and copyrights and to enforce
them, inclusive of but not limited to, US Provisional Patent
Application 61//858203 and US Provisional Patent Application
86/092618.
(vii) The Consultant hereby waives for the benefit of the Company and
its successors and assigns any and all moral rights in respect of
any Inventions.
(c) Delivery of Records
(i) The Consultant agrees that documents, copies, records and other
property or materials made or received by the Consultant that
pertain to the business and affairs of the Company, including all
Confidential and Proprietary Information and Inventions which is
in the Consultant's possession or under the Consultant's control
are the property of the Company and that the Consultant will
return same and any copies of same to the Company immediately
upon termination of this Agreement or at any time upon the
request of the Company.
6. NON-SOLICITATION
(a) During the term of this Agreement and for a period of 36 months
following the termination of this Agreement, howsoever arising, the
Consultant shall not (unless acting as an Consultant under this
Agreement or with the prior written consent of the Board or its
nominee):
I. call on, solicit, or endeavour to entice away, either directly or
indirectly, any person or entity who is, or was a client,
customer or potential customer of the Company who the Consultant
or his subordinates solicited or serviced on behalf of the
Company during the twelve month period immediately preceding the
termination of this Agreement; and
II. call on, solicit, or endeavour to entice away, either directly or
indirectly, any person or entity who is, or was an employee,
independent contractor, or consultant of the Company during the
twelve month period immediately preceding the termination of this
Agreement, to terminate his or her relationship with the Company
in order to become an employee, consultant or independent
contractor for any person or entity other than the Company.
16
7. EQUITABLE RELIEF
(a) The Consultant acknowledges that the restrictions contained in
Sections 5 and 6 are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate interests
of the Company, that the Company would not have entered into this
Agreement in the absence of such restrictions and that any violation
of any provision of those Sections could result in irreparable injury
to the Company.
(b) The Consultant agrees that, in the event he violates any of the
restrictions referred to in Sections 5 and 6, the Company shall be
entitled to such injunctive relief or other remedies at law or in
equity which the Court deems fit.
8. RIGHT TO USE THE CONSULTANT'S NAME AND LIKENESS
(a) The Consultant hereby grants to the Company, during the term of the
Consultant's term with the Company, the right to use the Consultant's
name, likeness and biography in connection with the Consultant's
services under this Agreement and in connection with the advertising
or exploitation of any project with respect to which the Consultant
performs his services for the Company.
9. GENERAL
(a) No Derogation of Obligations at Law
(i) Nothing in this Agreement is intended to limit or otherwise
affect the duties and obligations of the Consultant to the
Company existing at common law or in equity whether during, or
after the termination of, this Agreement.
(b) Waiver
(i) No consent or waiver, express or implied, by any party to this
Agreement or any breach or default by any other party in the
performance of its obligations under this Agreement or of any of
the terms, covenants or conditions of this Agreement shall be
deemed or construed to be a consent or waiver of any subsequent
or continuing breach or default in such party's performance or in
the terms, covenants or conditions of this Agreement. The failure
of any party to this Agreement to assert any claim in a timely
fashion for any of its rights or remedies under this Agreement
shall not be construed as a waiver of any such claim and shall
not serve to modify, alter or restrict any such party's right to
assert such claim at any time thereafter.
(c) Survival of Provisions
(i) The Company and the Consultant expressly acknowledge and agree
that the provisions of this Agreement, which by their express or
implied terms extend beyond the termination of the Consultant's
17
relationship hereunder, or beyond the termination of this
Agreement, shall continue in full force and effect
notwithstanding the termination of the this Agreement for any
reason.
(d) Notices
(i) Any notice relating to this Agreement or required or permitted to
be given in accordance with this Agreement shall be in writing
and shall, if to the Company, be personally delivered, emailed or
mailed by registered mail, postage prepaid, to its address set
out on the first page of this Agreement and, if to the
Consultant, to the home address of the Consultant on the
Company's records. Any notice shall be deemed to have been
received if delivered or sent by email, when delivered or
emailed, and if mailed, on the third day (excluding Saturdays,
Sundays and holidays) after the mailing thereof. If normal mail
service is interrupted the sender shall deliver such notice in
order to ensure prompt receipt thereof.
(ii) Each party to this Agreement may change its address for the
purpose of Section (i) by giving written notice of such change in
the manner provided for in Section (i).
(e) Applicable Law
(i) This Agreement shall be governed by and construed in accordance
with the laws of Ontario including the laws of Canada applicable
therein, which shall be deemed to be the proper law hereof. The
parties hereto hereby attorn and agree to submit to the
jurisdiction of the courts of Ontario, Canada.
(f) Currency
8.6.1 Unless otherwise indicated, all funds referred to under the
terms of this Agreement shall be funds designated in the lawful
currency of Canada.
(g) Severability
(i) If any provision of this Agreement for any reason is declared
invalid, such declaration shall not affect the validity of any
remaining portion of the Agreement, which remaining portion shall
remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated and it is
hereby declared the intention of the parties that they would have
executed the remaining portions of this Agreement without
including therein any such part, parts or portion which may, for
any reason, be hereafter declared invalid.
(h) Entire Agreement
(i) This Agreement constitutes the entire Agreement between the
parties hereto in relation to the subject matter hereof and there
are no representations or warranties, express or implied,
statutory or otherwise other than those set forth in this
Agreement. This Agreement supersedes any prior agreements,
18
written or oral in respect of the Consultant's relationship with
the Company, and any such prior agreements are hereby terminated
and cancelled.
(i) Amendment
(i) This Agreement cannot be amended or supplemented except by a written
Agreement executed by all parties hereto.
(j) Counterpart
(i) This Agreement may be executed in counterpart and such
counterparts together shall constitute one and the same
instrument and notwithstanding the date of execution shall be
deemed to bear the date as set out on the first page of this
Agreement.
(k) Enurement
(i) This Agreement shall enure to the benefit of and be binding upon the
parties and their respective heirs, executors, administrators,
successors, personal representatives and permitted assigns.
19
IN WITNESS WHEREOF the parties have duly executed this Agreement as of the date
set out on the first page of this Agreement
By:
-------------------------------
20