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EXHIBIT 10.1.30
EMPLOYMENT AGREEMENT
THIS AGREEMENT dated as of the day of August ___, 1998.
BETWEEN:
FUTURELINK/SYSGOLD LTD., an Alberta corporation
(hereinafter referred to as "the Employer") OF THE FIRST PART
- and -
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual residing in the City of Calgary,
in the Province of Alberta
(hereinafter referred to as the "Executive") OF THE SECOND PART
- and -
FUTURELINK DISTRIBUTION CORP., a Colorado corporation
(hereinafter referred to as "FutureLink Colorado") OF THE THIRD PART
WHEREAS the FutureLink Colorado through its subsidiary wholly owned FutureLink
Acquisition Corp., an Alberta corporation acquired the Employer, a corporation
which carries on an IT outsourcing business;
AND WHEREAS in partial consideration for the purchase of the shares of the
Executive, FutureLink Colorado agreed to cause the Employer to employ the
Executive;
AND WHEREAS the Executive has experience in the management of IT businesses;
AND WHEREAS the Employer has agreed to retain the Executive and the Executive
has agreed to provide his services to the Employer;
AND WHEREAS Futurelink Colorado has agreed to appoint the Executive as a
director and President of FutureLink Colorado;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto covenant and agree as follows:
DUTIES
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1. The Employer hereby agrees to employ the Executive as Director and President
of the Employer. The Executive shall serve the Employer in such capacity or
capacities and shall perform such duties and exercise such powers pertaining to
the management and operation of the Employer as may be determined from time to
time by the Board of Directors of the Employer, consistent with the office of
the Executive and in full compliance with all applicable federal, territorial,
provincial and local laws and regulations, and the Employer's present, future,
or amended code of conduct. Without limitation of the foregoing, the Executive
shall:
(a) devote his full time and attention during normal business hours to the
business and affairs of the Employer;
(b) perform those duties that may reasonably be assigned to him diligently,
faithfully, to the best of his abilities and in the best interests of
the Employer;
(c) promote the best interests and goodwill of the Employer.
REPORTING PROCEDURES
2. The Executive shall report to the Chief Executive Officer of the Employer.
The Executive shall report fully on the management, operation and business
affairs of the Employer and advise to the best of his ability and in accordance
with reasonable standards on business matters that may arise from time to time
during the term of this agreement.
TERM
3. The Employer shall employ the Executive for a period of three years from the
21st day of August, 1998 to and including the 20th day of August, 2001, unless
such employment shall be terminated earlier as hereinafter provided. Upon the
expiry of the term of this agreement on August 20, 2001, and on each anniversary
of such date falling thereafter, the term of this agreement shall be
automatically extended for one additional year on the same terms and conditions
unless, not less than six months prior to any such anniversary, either the
Executive or the Employer shall have given written notice to the other that it
does not wish to further extend this agreement.
REMUNERATION
4. Unless otherwise agreed, in consideration for the services provided by the
Executive, the Employer agrees to pay the Executive the following:
(1) an annual base salary in the sum of ONE HUNDRED AND EIGHTY THOUSAND
DOLLARS ($180,000.00) for the first year of the term of this agreement.
For each year thereafter the annual base salary payable to the Executive
shall be as agreed between the Employer and the Executive but in no
event shall the same be less than the annual base salary paid to the
Executive for the immediately preceding TWELVE (12) MONTH period (the
"Annual Base Salary"). The Annual Base Salary shall be payable in
accordance with the Employer's normal payroll procedures, less any and
all deductions or withholdings required by law;
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(2) a performance bonus, based on criteria to be set by the Board of
Directors at the next regular meeting of the Board of Directors
following execution of this Agreement, to a maximum of twenty percent
(20%) of the Annual Base Salary in respect of each year of the term of
this agreement (the "Performance Bonus");
(3) 250,000 options (the "Options"), each Option entitling the Executive to
acquire one common share of FutureLink Colorado at a price of $1.17
(U.S.) per share. The option shall vest as to one-half of the Options
immediately on the commencement of the term of this agreement and the
balance on the first anniversary of the commencement of the term. The
period for the exercise of the Options shall be three (3) years;
(4) the Executive shall be reimbursed by the Employer for all reasonable
travel and other out-of-pocket expenses actually and properly incurred
by the Executive in connection with the performance of his duties
hereunder. For all such expenses, the Executive shall furnish to the
Employer originals of all invoices, statements, receipts and vouchers as
and when requested;
(5) the Employer shall provide the Executive and his family members with
employee benefits comparable to those provided by the Employer from time
to time to other senior executives of the Employer;
(6) other than as herein provided, there shall be no cost-of-living increase
or merit increase in the Annual Base Salary or the Performance Bonus
unless agreed to in writing by the Board of Directors.
VACATION
5. The Executive shall be entitled to _____ weeks' paid vacation per fiscal year
of the Employer at a time approved in advance by the Chief Executive Officer of
the Employer, which approval shall not be unreasonably withheld, but shall take
into account the staffing requirements of the Employer and the need for the
timely performance of the Executive's responsibilities.
NON-COMPETITION AND NON-SOLICITATION
6. The Executive covenants and agrees that he shall not:
(a) during the term of this agreement and for a period of two years following
the termination of the Executive's employment or termination of this agreement
for whatever reason directly or indirectly, whether as principal, shareholder
(except of publicly traded securities), director, officer, manager, employee,
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consultant, lender, guarantor, or agent or in any other capacity be involved in
any other business, trade or entity that provides services similar or identical
to the services of the Employer:
(i) within the province of Alberta;
(ii) within the boundaries of Canada;
(iii) within the boundaries of Canada and the United States of
America.
(b) The Executive agrees that sub-paragraphs (i) through (iii) thereof are
separate and distinct agreements, that the greatest restriction of them shall
apply, failing which the next greatest restriction, and that if one of them is
determined to be void or unenforceable it shall not affect the validity of the
others.
(c) The Executive acknowledges and agrees that the provisions contained in this
paragraph shall survive the termination of this agreement for any reason
whatsoever.
7. The Executive covenants and agrees that he shall not during the term of this
agreement and for a period of two years following the termination of the
Executive's employment or termination of this agreement for whatever reason,
directly or indirectly solicit or assist any person, firm or corporation, either
as principal, agent, employee, shareholder or in any other manner whatsoever.
(a) solicit or induce any client or supplier of the Employer to terminate or
reduce its business with the Employer, or solicit or induce any
prospective client of the Employer to not engage the services of
the Employer (for which purpose, "prospective client" means a
specific client which has been identified by the Employer as a
possible client of the Employer and which the Employer has,
within the prior six months approached), or
(b) solicit or induce any employee of the Employer to leave the employment
of the Employer.
The Executive acknowledges and agrees that the provisions contained in this
paragraph shall survive the termination of this agreement for any reason
whatsoever.
8. It is hereby acknowledged and agreed that the restrictions contained in
paragraphs 6 and 7 herein shall not apply in the following circumstances.
(1) the Employer fails to pay when due the amounts outstanding under the
promissory notes issued to the Executive and his spouse in connection
with the acquisition by FutureLink Colorado of the Employer provided
that sixty days have passed from their due dates and the said amounts
payable thereunder remain unpaid;
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(2) the Employer ceases to carry on business except in the case of a merger,
amalgamation or other combination of business with any other corporation
or entity;
(3) the IT service business ceases to be the principal business of the
Employer;
(4) the Employer is dissolved or makes a general assignment for the benefit
of creditors, or any proceeding shall be instituted by or against the
Employer, unless defended by the Employer, seeking to adjudicate the
Employer a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debt under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or seeking the entry
of an order for relief or the appointment of a receiver, trustee (other
than Chapter 11 protection), custodian or other similar official for it
or for any substantial part of its property;
(5) the Employer fails to issue to the Trustee (as defined in the Voting and
Exchange Trust Agreement among the Employer, Riverview Management
Corporation and ▇▇▇▇▇▇, ▇▇▇▇▇▇ dated August 21, 1998) the FutureLink
Special Voting Stock (as defined in the Voting and Exchange Trust
Agreement among the Employer, Riverview Management Corporation and
▇▇▇▇▇▇, ▇▇▇▇▇▇ dated August 21, 1998) by December 15, 1998; or
(6) the acquisition by the Executive of 5% or less of the securities in
publicly traded companies in competition with the Employer or its
subsidiaries.
INSURANCE COVERAGE
9. The Executive shall be provided with the same or similar type of officers and
directors insurance coverage as is made available from time to time to other
officers and directors of the Employer throughout the period of time the
Executive serves as an officer and director of the Employer under this
agreement. The Employer agrees to indemnify the Executive for claims made
against him arising out of the Executive's performance of his duties under this
agreement.
CONFIDENTIALITY
10. The Executive agrees that he will hold in confidence all the Employer's
confidential information acquired by the Executive during the performance of his
duties pursuant to this agreement. The Executive also agrees that any
information provided to him by the Employer where such information is the
property of a third party will be treated with the same confidence as accorded
the confidential information of the Employer as set out above. The Executive
agrees and acknowledges that the disclosure of any such information to the
competitors of the Employer or to the general public, or the use of same by the
Executive or any competitor of the Employer, would be highly detrimental to the
interests of the Employer.
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11. The Executive acknowledges that, as a senior executive of the Employer that
he owes fiduciary duties to the Employer, including the duty of loyalty, the
duty of honesty and the duty to act in the best interests of the Employer.
12. The Executive further acknowledges that the right to maintain the
confidential information, the right to preserve the goodwill of the Employer and
the right to the benefit of any relationships that have developed between the
Executive and the clients, suppliers and employees of the Employer by virtue of
the Executive's employment with the Employer constitute proprietary rights of
the Employer, which the Employer is entitled to protect.
TERMINATION
13. The Executive acknowledges that this agreement can be terminated by the
Board of Directors of the Employer at their pleasure and for any reason
whatsoever, without advance notice of termination. In the event of the
termination of this agreement, in whole or in part, prior to the expiry of the
term of this agreement, the Executive shall receive payment of all amounts
payable under this agreement for the balance of the term herein and the Annual
Base Salary and Performance Bonus shall be paid forthwith on demand therefore by
the Executive, calculated on the basis of the amount of Annual Base Salary then
paid during the year of termination. The Options, if not vested, shall vest and
the Executive shall be entitled to exercise the Options at any time within the
three (3) year period during which they were exercisable. Notwithstanding the
foregoing, if the Executive is terminated for any matter relating to fraud or
criminal activity on the part of the Executive against the Employer, its
customers, or employees, officers or directors of the Employer or its related
companies, the Annual Base Salary shall be prorated to the date of dismissal and
there shall be no further compensation hereunder.
14. The Executive shall be entitled to resign from his employment at any time
upon giving four months' notice in writing to the Chief Executive Officer of the
Employer. The Employer may waive in whole or in part such notice. Upon
termination of the Executive's employment:
(i) by the resignation from the employment by the Executive;
(iii) by death; or
(iii) by permanent disability meaning an absence from the
regular place of employment due to mental or physical
illness for 45 days in any 90 day period,
the Executive shall not be entitled to any severance payment other than Annual
Base Salary prorated to the last day worked by the Executive, vacation earned by
the Executive to the date of termination and any Options which have vested at
such date.
FUTURELINK COLORADO
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16. The Executive agrees to act as a director and President of FutureLink
Colorado and FutureLink Colorado agrees to cause such appointment.
SEVERABILITY
16. In the event that any provision contained in this agreement shall be
declared by any court or other lawful authority of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, such invalidity,
illegality or non-enforceability shall not affect the validity, legality or
enforceability of the remaining provisions, or part thereof, of this agreement
and such remaining provisions, or part thereof, shall remain enforceable and
binding and any unenforceable provision shall, to the extent permitted by law,
be replaced by a provision which, being valid comes closest to the intention
underlying the invalid, illegal or unenforceable provision.
NO AMENDMENTS OR WAIVER
16. No amendment, modification or rescission of this agreement shall be
effective unless set forth in writing signed by a duly authorized representative
of each party.
17. No provision hereof shall be deemed waived and no breach excused, unless
such waiver or consent excusing the breach shall be in writing and signed by the
party to be charged with such waiver or consent. A waiver by a party of any
provision of this agreement shall not be construed as a waiver of a further
breach of the same provision.
SURVIVAL
18. Any terms or conditions of this agreement by which obligations of either
party are expressed to be applicable or which extend or may extend beyond
termination of this agreement shall survive and continue in full force and
effect, except to the extent expressly set out herein.
NO ASSIGNMENT
19. The rights of the parties under this agreement may not be assigned, pledged
or encumbered.
NOTICES
20. All notices as required hereunder shall be in writing and either delivered
by hand or facsimile transmission or mailed by prepaid registered mail to the
parties hereto at the addresses as follows:
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(a) To the Employer: FutureLink/SysGold Ltd.
▇▇▇, ▇▇▇ - ▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Chief Executive Officer
Facsimile No. (403-543-5510)
(b) To the Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
SUCCESSORS
21. This agreement shall enure to the benefit of and be binding upon the parties
together with their personal representatives, successors, executors and
permitted assigns, if any.
LEGAL ADVICE
22. The Executive hereby represents and warrants to the Employer and
acknowledges and agrees that he had the opportunity to seek and was not
prevented nor discouraged by the Employer from seeking independent legal advice
prior to the execution and delivery of this agreement and that, in the event
that he did not avail himself of that opportunity prior to signing this
agreement, he did so voluntarily without any undue pressure and agrees that his
failure to obtain independent legal advice shall not be used by him as a defence
to the enforcement of his obligations under this agreement.
GOVERNING LAW
23. This agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta and the laws of Canada applicable herein.
IN WITNESS WHEREOF the parties hereto have executed these present this ________
day of August, 1998 to have effect as of the date and year first above written.
FUTURELINK/SYSGOLD LTD.
Per: _______________________________
Per: _______________________________
I/We have authority to bind the
Corporation
FUTURELINK DISTRIBUTION CORP.
(COLORADO)
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Per: _______________________________
Per: _______________________________
I/We have authority to bind the
Corporation
____________________________________
Witness: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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THIS AGREEMENT made the 16th day of July, 1998.
BETWEEN:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, of the City of Calgary, in the Province of Alberta,
(hereinafter referred to as "▇▇▇▇▇▇▇▇▇")
OF THE FIRST PART;
- and -
FUTURELINK DISTRIBUTION CORP. a corporation incorporated pursuant to the
laws of the State of Colorado,
(hereinafter referred to as the "Corporation")
OF THE SECOND PART.
AND WHEREAS the Corporation wishes to retain the services of
▇▇▇▇▇▇▇▇▇ to provide Services to the Corporation, as and when requested by the
Directors of the Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration
of the mutual covenants and conditions hereinafter contained, the parties agree
as follows:
ARTICLE 1.00 - APPOINTMENT AND TERM
1.1 Appointment. The Corporation hereby retains ▇▇▇▇▇▇▇▇▇ to act as a director
of the Corporation effective August 1, 1998, and agrees to appoint ▇▇▇▇▇▇▇▇▇ as
Chairman of the Board of Directors by November 30, 1998, on a mutually agreeable
timetable. The Corporation will make press releases and other appropriate
announcements upon these appointments. These appointments are subject to
approval by the shareholders of the Corporation. ▇▇▇▇▇▇▇▇▇ agrees to perform the
duties and exercise such powers consistent with his position and such additional
powers as may from time to time be assigned or vested in him by the by-laws of
the Corporation or by the resolutions of the Board of Directors of the
Corporation. In particular, ▇▇▇▇▇▇▇▇▇ shall, without limiting the foregoing:
(a) provide advice with respect to the targeting and structuring of
acquisitions of other businesses by the Corporation;
(b) assist in the development of the profile of the Corporation with
the general public and with the financial community; and
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(c) introduce the Corporation and its executive officers to contacts of
▇▇▇▇▇▇▇▇▇ who would be of assistance to the Corporation in obtaining
funds for proposed acquisitions as well as the day to day financing
requirements of the Corporation;
all such duties being hereinafter referred to as the "Services. ▇▇▇▇▇▇▇▇▇ agrees
that he shall perform the Services faithfully and to the best of his abilities.
While the role of external director is not a full-time position, ▇▇▇▇▇▇▇▇▇
agrees to devote such time and attention as is reasonably necessary for the
fulfilment of the Services and is consistent with standards for external
directors. For special project work, please refer to 2.4.
1.2 Term. ▇▇▇▇▇▇▇▇▇ is retained hereunder for a term commencing on the date
hereof and continuing for eighteen (18) months (the "Term") unless earlier
terminated in accordance with the terms hereof.
ARTICLE 2.00 - COMPENSATION
2.1 Initial Compensation. As initial compensation for the Services performed
pursuant to this Agreement, the Corporation shall pay to ▇▇▇▇▇▇▇▇▇'▇ service
company (Mardale Investments Ltd.) a fee of One Hundred Thousand Canadian
Dollars (C$100,000) within 24 hours of execution of this agreement.
2.2 Board Meeting Fee. ▇▇▇▇▇▇▇▇▇ shall also be compensated as a director of the
Corporation in the same manner as other members of the Board of Directors for
attending board meetings. ▇▇▇▇▇▇▇▇▇ acknowledges that, as of the date hereof,
the directors of the Corporation are paid US$250.00 per board meeting that they
are in physical attendance.
2.3 Expenses. ▇▇▇▇▇▇▇▇▇ shall also be entitled to be re-imbursed for his
reasonable expenses incurred while performing the Services on behalf of the
Corporation including entertainment, meals, travel and accommodation expenses,
outside of Calgary.
2.4 Special Projects. The Corporation agrees to separately compensate ▇▇▇▇▇▇▇▇▇
for special project work that would involve commitment of time above what would
be normally expected for an external director. Special project work could
involve, for example, involvement in multiple day roadshows for financing and/or
participation in the analysis, negotiation and structuring of potential
acquisitions. The Corporation and ▇▇▇▇▇▇▇▇▇ would agree in advance which
projects would constitute special project work. The Corporation agrees to pay
▇▇▇▇▇▇▇▇▇'▇ service company (Mardale Investments Ltd.) a per diem of C$1000.00
for special project work that has been designated as such in advance.
ARTICLE 3.00 - TERMINATION
3.1 Termination by Corporation. This Agreement may only be terminated by the
Corporation for cause prior to the expiration of the Term if ▇▇▇▇▇▇▇▇▇ is in
default in the performance of the Services and such default continues for a
period of thirty (30) days after notice thereof or upon the death or disability
of ▇▇▇▇▇▇▇▇▇. Disability shall occur if ▇▇▇▇▇▇▇▇▇ is unable to attend to his
duties due to medical reasons for a continuous period of 30 days during the
Term.
3.2 Termination by ▇▇▇▇▇▇▇▇▇. This Agreement may only be terminated by
▇▇▇▇▇▇▇▇▇, by resignation, prior to the expiration of the Term if the
Corporation is in default in the performance
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of any of its covenants, obligations or agreements herein contained and such
default shall continue for a period of thirty (30) days following notice
thereof.
3.3 Termination by Mutual Agreement. It is acknowledged that this Agreement may
be terminated at any time upon the mutual agreement of the parties hereto.
ARTICLE 4.00 - STOCK OPTION
4.1 The Corporation hereby grants to ▇▇▇▇▇▇▇▇▇ two options (A & B) to purchase a
total of Five Hundred Thousand (500,000) shares of the Corporation at a strike
price of US$0.76 per share until June 29, 2001. Option A is for Two Hundred and
Fifty Thousand (250,000) shares and vests immediately upon execution of this
agreement. Option B is for the other Two Hundred and Fifty Thousand (250,000)
shares and vests one year after the execution of this agreement.
ARTICLE 5.00 - CONFIDENTIALITY AND NON-DISCLOSURE
5.1 In this Article, the following words have the following meanings:
(a) "Business Secrets" means confidential or sensitive business information,
including without limitation, data, business strategies, plans, contracts,
financial records and budgets, marketing techniques, pricing policies, costing
information, and information relating to or pertaining to targeted acquisitions
of the Corporation;
(b) "Contractors" of the Corporation means customers, suppliers, partners,
co-venturers and other contractors of the Corporation and also includes
potential customers of the Corporation in respect of whom access to Business
Secrets has been obtained for the purpose of evaluating proposed projects or for
submitting of tenders, bids or proposals.
(c) "Corporation", in this Article 5.00 only, shall mean the Corporation and any
and all affiliated or related corporations.
(c) "Documentation" means all materials constituting or containing Technology or
Business Secrets, including electronic storage media.
(d) "Technology" means all computer program, protocols, product technical
specifications including installation, performance and maintenance
specifications, patents, designs, drawings, manuals and generally all knowledge,
know-how, expertise and information of a technical nature, whether or not
protected under patent, design, copyright or other intellectual property laws,
and includes any and all future changes, modifications, additions, improvements
and enhancements thereof.
5.2 ▇▇▇▇▇▇▇▇▇ will not divulge Technology or Business Secrets belonging to the
Corporation or Contractors of the Corporation to any persons whatsoever, other
than to:
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(a) employees of Corporation;
(b) persons to whom ▇▇▇▇▇▇▇▇▇ is authorized and directed to
release such Technology or Business Secrets, and only then to
the extent of such authorization.
5.3 ▇▇▇▇▇▇▇▇▇ shall always:
(a) exercise reasonable care and diligence to protect the
confidentiality and integrity of Technology or Business
Secrets belonging to the Corporation or its Contractors; and
(b) strictly adhere to all policies, procedures and directions of
the Corporation relating to the protection and custody of
Technology and Business Secrets of the Corporation or its
Contractors.
5.4 All Technology and Business Secrets belonging to the Corporation will be
assumed by ▇▇▇▇▇▇▇▇▇ to be confidential.
5.5 ▇▇▇▇▇▇▇▇▇ will only use Technology and Business Secrets belonging to the
Corporation in performance of his duties hereunder and for no other use
whatsoever.
5.6 The obligation of confidentiality in this Article shall apply unless
▇▇▇▇▇▇▇▇▇ can establish that he reasonably believed that such Technology or
Business Secrets were generally known in the industry.
5.7 Upon any termination of this agreement for any reason, ▇▇▇▇▇▇▇▇▇ shall
forthwith return to the Corporation all Documentation relating to the Technology
and Business Secrets of either the Corporation or its Contractors, and if any
such information is electronically copied and stored by ▇▇▇▇▇▇▇▇▇, upon request
he shall destroy such electronically stored copies.
5.8 The obligations of ▇▇▇▇▇▇▇▇▇ set out in this Article shall continue in full
force and effect after termination of this agreement regardless of the reason or
cause of such termination.
5.10 ▇▇▇▇▇▇▇▇▇ agrees that he will not, during the term hereof and for a period
of two years following termination of this agreement, be a party to or abet any
solicitation of customers, clients or Contractors of the Corporation, to
transfer business from the Corporation to any other person, or seek in any way
to persuade or entice any employee, officer or director of the Corporation to
leave their office or employment or to be a party to or abet such action.
ARTICLE 6.00 - GENERAL PROVISIONS
6.1 Notices. All notices, requests, demands or other communications required or
desired to be given or made by one party to another shall be given in writing by
personal delivery or prepaid registered mail or by facsimile transmission or
other means of instantaneous transmission in regular commercial usage at such
time, verified by a transmission report, as follows:
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to the Corporation: FutureLink Distribution Corp.
▇▇. ▇▇▇, ▇▇▇ - ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
to ▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
or at such other address as may be given by any of them to the others. Any
notice or other communication so given or made shall be conclusively deemed to
have been given and received when delivered personally, if delivered personally,
provided that if it is delivered on a day which is not a Business Day then the
notice or communication shall be deemed to have been given and received on the
next business day following such date, or on the fifth (5th) business day
following the date of mailing, if mailed by prepaid registered mail, except in
the event of disruption of mail services in which event any notice shall be
delivered personally.
6.2 Time of the Essence. Time is of the essence of this Agreement and every part
of this Agreement and no extension or variation of this Agreement shall operate
as a waiver of this provision.
6.3 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Alberta, and the laws of Canada
applicable therein, and the parties hereto attorn to the non-exclusive
jurisdiction of the courts of such Province.
6.4 Entire Agreement: This Agreement and the terms hereof constitute the entire
agreement between the parties hereto with respect to all of the matters herein
and its execution has not been induced by, nor do any of the parties hereto rely
upon or regard as material, any representations or writings not incorporated
herein and made a part hereof and this Agreement shall not be amended or altered
or qualified except by memorandum in writing signed by both of the parties.
6.5 Severability. If any of the provisions contained in this Agreement are, for
any reason, held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision or provisions had never been contained in
this Agreement unless the deletion of such provision or provisions would result
in such a material change as to cause the completion of the transactions
contemplated in this Agreement to be unreasonable.
6.6 Further Assurances. The parties covenant and agree to execute such further
and other documents and undertake such other actions as may be reasonably
required to give effect to the terms and intent of the transactions contemplated
in this Agreement.
6.7 Enurement. The provisions hereof, where the context permits, shall enure to
the benefit of and be binding upon the heirs, executors, administrators or other
legal representatives of ▇▇▇▇▇▇▇▇▇
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6
and the successors and assigns of the Corporation. With respect to ▇▇▇▇▇▇▇▇▇,
this Agreement, being personal, may not be assigned.
6.8 Time Periods. When calculating the period of time within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
which is the reference day in calculating such period shall be excluded.
6.9 Extended Meanings. In this Agreement, where the context requires, the
singular number includes the plural and vice versa, the masculine gender
includes the feminine and neuter genders and vice versa and the word person is
not limited to an individual but includes any entity recognized by law.
6.10 Entire Agreement. This Agreement constitutes the entire agreement among the
parties pertaining to the subject matter of this Agreement and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement except as specifically set out in this Agreement. No supplement,
modification, waiver or termination of this Agreement shall be binding, unless
executed in writing by the party or parties to be bound thereby.
6.11 Headings. All headings are included solely for convenience of reference and
are not intended to be full or accurate descriptions of the contents thereof.
6.12 Recitals. Each of the parties acknowledges that the recitals of this
Agreement, so far as they relate to such party, are true and correct in
substance and in fact.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
FUTURELINK DISTRIBUTION CORPORATION
Per: _________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer, Director
__________________________________ ________________________________
WITNESS ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
