SHARE PURCHASE AGREEMENT
THIS AGREEMENT dated for reference April 15, 1996, is made
BETWEEN
HC HEALTHCARE HEARING CLINICS LTD., a company under the laws
of British Columbia with its registered and records office at
▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
("Hearing Clinics");
AND
HEALTHCARE CAPITAL CORP., a company under the laws of Alberta
with its registered and records office at 4000 Petro Canada
Centre, 150 - 6th Avenue S.W., Calgary, Alberta, T2P 4M5
("Capital");
(collectively referred to as the "Purchaser")
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇, a businessman, at 110 - ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Vendor").
WHEREAS:
A. Hearing Clinics is a wholly-owned subsidiary of Capital;
B. The Vendor is the registered and beneficial owner of 10,000 common shares
without par value in the capital of Pacific Hearing Clinic Inc.("Pacific") and
the registered owner of 1,000 common shares without par value in the capital of
Oakridge Hearing Clinic Inc.
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("Oakridge") which the Vendor holds in trust for Pacific (collectively referred
to as the "Vendor's Shares");
C. Pacific is the registered and beneficial owner of all the issued and
outstanding shares of Pacific Audiology Associates Inc. ("Pacific Audiology")
and the beneficial owner of the Oakridge Shares;
D. The Vendor wishes to sell and the Purchaser wishes to purchase the Vendor's
Shares;
E. The Vendor has agreed to accept from the Purchaser, as part payment of the
purchase price for the Vendor's Shares, a promissory note convertible to common
shares in the capital of Capital (the "Capital Shares"), and Capital has agreed
to issue to the Vendor, if at the request of the Vendor, the Capital shares.
NOW THEREFORE in consideration of the premises and the mutual agreements and
covenants herein contained, the parties hereto hereby covenant and agree as
follows:
1. INTERPRETATIVE PROVISIONS
1.1 DEFINITIONS
For the purpose of this Agreement, the following words will, whenever used in
this Agreement, unless there is something in the subject or context inconsistent
therewith, have the following meanings:
(a) ADJUSTMENTS means any adjustment to the Purchase Price in
accordance with Subsection 2.6;
(b) BALANCE SHEET means an updated consolidated balance as of
the date of the Closing;
(c) CLOSING means any closing of the purchase and sale of the
Vendor's Shares;
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(d) CLOSING DATE means April 30, 1996;
(e) COMPANIES means Pacific, Pacific Audiology and Oakridge,
collectively;
(f) CONSOLIDATED LIABILITIES has the meaning provided for in
Paragraph 2.6;
(g) CONVERSION NOTICE has the meaning provided for in
Paragraph 2.5(b);
(h) EXCHANGE means The Alberta Stock Exchange;
(i) FINANCIAL STATEMENTS has the meaning provided for in
Paragraph 3(i);
(j) HOLDBACK has the meaning provided for in Subsection 2.7;
(k) INITIAL PAYMENT means $50,000 of the Purchase Price to be
paid in cash;
(l) LEASE means the lease agreement between Pacific Audiology
and Pensionfund Properties Limited, dated November 14, 1988.
(m) NOTE has the meaning provided for in Paragraph 2.4(b);
(n) OAKRIDGE SHARES means common shares without par value in
the capital of Oakridge;
(o) PACIFIC SHARES means common shares without par value in
the capital of Pacific;
(p) PARTIES means parties to this Agreement;
(q) PURCHASE PRICE means, with respect to the sale and
purchase of the Vendor's Shares, the amount payable to
purchase the Vendor's Shares as set forth in paragraph 2.3;
(r) SHAREHOLDER'S LOAN means any loan made by any of the
shareholders of the Companies, past or present, to any of the
Companies which are due and payable at the Closing;
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(s) VENDOR'S SHARES has the meaning provided for in Recital B
of this Agreement.
1.2 GENDER, PLURAL AND SINGULAR
In this Agreement, the masculine includes the feminine and the plural includes
the singular and vice versa, and modifications to the provisions of this
Agreement may be made accordingly as the context requires.
1.3 HEADINGS
The headings appearing in this Agreement have been inserted for reference as a
matter of convenience only and in no way define, limit or enlarge the scope or
meaning of this Agreement or any provision hereof.
2. PURCHASE AND SALE OF SHARES
2.1 PURCHASED SHARES
On the terms and subject to the fulfilment of the conditions hereof, the Vendor
hereby agrees to sell, assign and transfer to the Purchaser, and the Purchaser
hereby agrees to purchase and accept from the Vendor the Vendor's Shares.
2.2 CLOSING DATE
The closing of the purchase sale of the Vendor's Shares (the "Closing") will
occur on April 30, 1996 (the "Closing Date") at the office of Swinton & Company,
solicitors for the Purchaser at 1000-840 ▇▇▇▇ Street, Vancouver, British
Columbia, or at such other time and place as may be mutually agreed to by the
parties to this Agreement .
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2.3 PURCHASE PRICE
Subject to Subsections 2.4 and 2.6 the price payable by the Purchaser to the
Vendor for the Vendor's Shares will be the Initial Payment plus the value of the
Note as defined in Paragraph 2.4(b) of this Agreement.
2.4 PAYMENT OF PURCHASE PRICE
The Purchase Price will be paid as follows:
(a) notwithstanding Subsection 2.3 and subject to Subsection
2.6, at the Closing, the Purchaser will deliver to the Vendor
a bank draft, certified cheque or a solicitor's trust cheque
in the amount of $40,000; and
(b) the Purchaser will deliver to the Vendor a convertible
promissory note which is the same as the form of note attached
to this Agreement as Schedule "A" in the amount of $175,000
(the "Note") due and payable on or after the one year
anniversary date of the Closing Date (the "Due Date") without
interest which, may be converted, at the option of the Vendor,
into Capital Shares at a price of $1.35 per share at any time
during the 15 month period following the date on which Capital
becomes a reporting issuer in British Columbia (the
"Conversion Period").
2.5 CONVERSION OF PROMISSORY NOTE
The Vendor may, at any time during the Conversion Period, convert the Note to
the Capital shares in the following manner:
(a) the Vendor will give to the Purchaser 10 days' notice (the
"Conversion Notice") of its wish to convert the Note into the
Capital Shares; and
(b) the Purchaser within 10 days of the receipt of the
Conversion Notice will deliver to the Vendor a share
certificate representing the Capital Shares against the
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delivery of the Note in original by the Vendor to the
Purchaser.
2.6 ADJUSTMENT TO THE PURCHASE PRICE
The Vendor will cause the Companies to deliver to the Vendor an updated Balance
Sheet which will be delivered to the Purchaser at the Closing and the Purchase
Price will be adjusted as follows:
(a) If the consolidated current assets less the current
liabilities of the Companies (the "Consolidated Liabilities")
exceed $18,550, the amount in excess of $18,550 will be
deducted from the Initial Payment;
(b) if the Consolidated Liabilities are less than $18,550, the
difference between $18,550 and the Consolidated Liabilities
will be added to the Initial Payment; or
(c_) if, at the Closing, any amount of the Shareholder's Loan
has not been paid in full to the Vendor and/or to any of the
past shareholders by, the Companies the unpaid portion of the
Shareholder's Loan will be deducted from the Initial Payment.
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If the amount to be deducted from the Initial Payment pursuant to Subsection
2.6(a) and/or 2.6(c) exceeds the Initial Payment, then the Purchaser has the
option to deduct such amount from the amount payable pursuant to the Note.
2.7 HOLDBACK
Notwithstanding Subsection 2.3 of this Agreement, the Parties agree that the
Purchaser will holdback $10,000 of the Initial Payment (the "Holdback") in the
trust account of Swinton & Company until such time the Vendor has delivered to
the Purchaser the Balance Sheet. Upon receipt of the Balance Sheet and subject
to the Adjustment set forth in Subsection 2.6 of this Agreement, the Parties
hereby instruct Swinton & Company to release the Holdback to the Vendor.
3. REPRESENTATIONS AND WARRANTIES
OF THE VENDOR
The Vendor hereby represents and warrants to the Purchaser that:
(a) AUTHORITY AND BINDING OBLIGATION. The Vendor has good
right and absolute authority to enter into this Agreement and
to sell, assign and transfer the Vendor's Shares to the
Purchaser in the manner contemplated herein and to perform all
of the Vendor's obligations under this Agreement. To the best
of the Vendor's knowledge, the Companies have taken all
necessary actions, steps in corporate and other proceedings to
approve or authorize, validly and effectively, the sale and
transfer of the Vendor's Shares by the Vendor to the
Purchaser. This Agreement is a legal, valid and binding
obligation of the Vendor;
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(b) NO CONTRAVENTION. The making and performance by the Vendor
of this Agreement:
(i) does not and will not violate any provision of
any applicable law, rule, regulation or order of any
court, regulatory commission, board or other
administrative agency or any provision of either of
the Companies' articles of incorporation; and
(ii) does not and will not result in the breach of,
or constitute a default or require any consent under,
or result in the creation of any lien upon any
properties or assets of the Companies pursuant to any
indenture, bank or other credit agreement, mortgage
or other agreement or instrument to which the
Companies are individually a party or by which any of
their properties may be bound or affected;
(c) APPROVALS. No authorization, consent, licence, or approval
of, or filing a registration with, or notification to, in any
governmental body or regulatory supervisory authority is
required for the execution, delivery, or performance by the
Vendor;
(d) NO OTHER PURCHASE AGREEMENT. No person has any agreement,
option, understanding or commitment, or any right or privilege
(whether by law, pre- emptive or contractual) capable of
becoming an agreement, option or commitment, including
convertible securities, awards or convertible obligation of
any nature for:
(i) the purchase, subscription, allotment or issuance, or
conversion into, any of the unissued shares in the capital of
the Companies or any securities of the Companies;
(ii) the purchase from the Vendor of any of the Vendor's
Shares; or
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(iii) the purchase or other acquisition from the
Companies of any of its undertaking, property or
assets, other than in the ordinary course of the
business;
(e) STATUS, CONSTATING DOCUMENTS AND LICENCES. To the best of
the Vendor's knowledge:
(i) each of the Companies is a corporate duly
incorporated and validly subsisting in all respects
under the laws of British Columbia;
(ii) the Companies are duly licensed, registered and
qualified as a corporation to do business, are up to
date in filing of all required corporate returns and
other notices and filings and are otherwise in good
standing in all respects; and
(iii) there are no proceedings in progress, pending
or threatened, which could result in the revocation,
cancellation or suspension of any of the licences;
(g) LITIGATION. There is no action, suit or proceeding at law
or in equity or before any governmental agency or authority or
arbitral tribunal now pending or, to the best of the Vendor's
knowledge, threatened against or affecting the Companies or
any of its properties or rights which would, if adversely
determined, have a material adverse effect on the financial
condition or business of the Companies;
(h) CAPITALIZATION. Authorized capital of the Companies are as
follows:
(i) Pacific has authorized capital of 10,000 common
shares without par value, all of which have been
validly issued and are outstanding as fully paid and
non-assessable shares;
(ii) Oakridge has authorized capital of 1,000 common
shares without par value, all of which have been
validly issued and outstanding as fully paid
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and non-assessable shares; and
(iii) Pacific Audiology has authorized capital of
10,000 common shares without par value of which 200
common shares without par value have been validly
issued and are outstanding as fully paid and
non-assessable.
No other shares or other securities of the Companies
have been issued in violation of any laws, the articles of
incorporation, by-laws or other constating documents of the
Companies or the terms of any agreements to which the
Companies are a party or by which they are bound. The Vendor
owns all of the issued and outstanding shares of Pacific and
Oakridge as the shareholder of record and as the beneficial
owner, with good marketable title thereto, free and clear of
any and all encumbrances;
(i) MISLEADING STATEMENTS. No representation or warranty by
the Vendor in this Agreement or any written statement or
certificate furnished or to be furnished to the Purchaser
pursuant to this Agreement or in connection with the
transactions contemplated by this Agreement, when taken
together, contains or will contain any untrue statement of
material fact or omits or will omit to state of material fact
necessary to make the statements made not misleading;
(j) ABSENCE OF UNDISCLOSED AND DISCLOSED LONG-TERM
LIABILITIES. Except to the extent reflected or reserved
against in the financial statement prepared by the Companies
as of February 29, 1996 for the Companies (the "Financial
Statements") to the best of the Vendor's knowledge, the
Companies do not have any outstanding indebtedness or any
liabilities or obligations (whether accrued, absolute
contingent or otherwise) and to the best of the Vendor's
knowledge, the Companies do not have any long-term liabilities
by way of shareholder's loans payable to the past or present
shareholders of the Companies;
(k) ABSENCE OF CHANGES. To the best of the Vendor's knowledge,
since the date of
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the balance sheet included in the Financial Statements, there
have not been:
(i) any changes in the condition or operations of the
business, assets or financial affairs of the
Companies which are, individually or in the
aggregate, materially adverse; or
(ii) any damages, destruction or loss, labour,
trouble or other event, development or condition, of
any character (whether or not covered by insurance)
which has not been disclosed to the Purchaser, which
has or may materially and adversely affect the
business, assets, properties or future prospects of
the Companies;
(l) ABSENCE OF GUARANTEES. To the best of the Vendor's
knowledge, the Companies have no guarantees with respect to
the obligations of any other person. The Companies have no
indemnities or contingent or indirect obligations with respect
to the obligation of any other person including any obligation
to service the debt of or otherwise acquire an obligation of
another person or to supply funds to, or otherwise maintain
any working capital or other balance sheet condition of any
other person;
(m) ABSENCE OF CONFLICTING AGREEMENTS. To the best of the
Vendor's knowledge, the Companies are not party to, bound by
or subject to any indenture, mortgage, lease, agreement,
instrument, judgment or decree to which would be violated or
breached by, or under which default would occur or which could
be terminated, cancelled or accelerated, in whole or in part,
as a result of the execution and delivery of this Agreement or
the consummation of any other transactions provided for
herein;
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(n) FILINGS. To the best of the Vendor's knowledge, the
Companies:
(i) have duly filed in a timely manner:
(A) all federal and provincial income tax
returns and election forms and the tax
returns of any other jurisdiction required
to be filed, and all such returns and forms
have been completed accurately and correctly
in all respects; and
(B) all Workers' Compensation Board returns,
corporation capital tax returns and other
reports and information required to be filed
with all applicable government authorities,
agencies or regulatory bodies;
(ii) have paid all taxes (including all federal,
provincial and local taxes, assessments or other
imposts in respect of their income, business, assets
or property) and all interest and penalties thereon
with respect to the Companies, for all previous years
and all required quarterly instalments due for the
current fiscal year;
(iii) have provided adequate reserves for all taxes
for the periods covered by, and such reserves are
reflected in, the Financial Statements and the
Balance Sheet;
and there is no agreement, waiver or other
arrangement providing for an extension of time with respect to
the filing of any tax return, or payment of tax, governmental
charge or deficiency by the Companies, nor is there any
action, suit, proceeding of the tax authority, governmental
charge or deficiency by the Companies, nor is there any
action, suit, proceedings, investigation or claim now
threatened or pending against the Companies in respect of, or
discussions underway with any governmental authority relating
to any such tax, governmental charge or deficiency;
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(o) COMMITMENTS FOR CAPITAL EXPENDITURES. To the best of the
Vendor's knowledge, the Companies are not committed to make
any capital expenditures, nor have any capital expenditures
been authorized by the Companies at any time since the date of
the Financial Statements, except for capital expenditures made
in the ordinary course of the routine daily affairs of the
business;
(p) DIVIDENDS AND DISTRIBUTIONS. Since the date of the
Financial Statements, the Companies have not declared or paid
any dividend or made any other distribution of profits or
capital to any of the shares of any class or paid any salaries
or bonuses other than the $5,000 per month being paid to the
Vendor, the outstanding shareholder's loan payable to the
Vendor and other normal market salaries to employees, or
redeemed or purchased or otherwise acquired any of their
shares of any clause, or reduced their authorized capital or
issued capital, or agreed to do any of the foregoing;
(q) TITLE TO ASSETS. To the best of the Vendor's knowledge,
the Companies are the owners of and have good marketable title
to all of their properties and assets, including, without
limitation, all properties and assets reflected in the
Financial Statements and all properties and assets acquired by
the Companies after the date of the Financial Statements free
and clear of all encumbrances whatsoever;
(r) ACCOUNTS RECEIVABLE. The accounts receivable of the
Companies reflected in the Financial Statements and all
accounts receivable of the Companies arising since the date of
the Financial Statements arose from bona fide transactions in
the ordinary course of the business and are valid, enforceable
and fully collectable accounts consistent with past practice;
(s) REAL PROPERTIES. The Companies do not own or have any
right, title or interest in any real property, except for the
leasehold interest held by Pacific Audiology in the leased
premises located at ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇ ▇▇▇; and
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(t) RESTRICTIONS ON DOING BUSINESS. The Companies are not
party to or bound by any agreement which would restrict or
limit their rights to carry on any business or activity or to
solicit business from any person or any geographical area or
otherwise to conduct business as the corporate companies may
determine. The Companies are not subject to any legislation or
any judgment, order or requirement of any court or
governmental authority which is not of general application to
persons carrying on business similar to the business. To the
best of the knowledge of the Vendor, there are no facts or
circumstances which could materially adversely affect the
ability of the Companies to continue to operate the business
as presently conducted following the completion of the
transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
4.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby warrants and represents that:
(a) AUTHORITY TO EXECUTE AGREEMENT. The Purchaser has full
corporate power and authority and legal right to make this
Agreement and to incur and perform its obligations hereunder
and the performance by the Purchaser of this Agreement has
been duly authorized by all necessary actions of the
Purchaser;
(b) AUTHORIZATION. The execution, delivery and performance of
this Agreement by the Purchaser does not:
(i) require the consent, approval or authorization of
any governmental or regulatory authority having
jurisdiction over it; and
(ii) will not violate any applicable law, judgment,
order, injunction, decree, rule, regulation or ruling
of any governmental authority applicable to it.
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5. CONDITIONS TO THE PURCHASER'S
OBLIGATIONS AT CLOSING
The obligations of the Purchaser under Section 2 of this Agreement are subject
to the fulfilment on or before the Closing of each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Vendor contained in Section 3 will be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Closing.
5.2 PERFORMANCE
The Vendor will have performed and complied with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing.
5.3 DUE DILIGENCE COMPLETED
The Purchaser will be satisfied with the results of his due diligence
investigation of the Companies.
5.4 OPINION OF THE VENDOR'S COUNSEL
The Vendor will have delivered to the Purchaser an opinion dated as of the
Closing from counsel for the Vendor to the effect that:
(a) the Companies are corporations duly organized and validly
existing under the laws of British Columbia, and the Companies
have the requisite corporate power and authority to own their
properties and to conduct their business as now conducted; and
(b) Pacific is authorized to issue 10,000 common shares
without par value, all of
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which are issued and outstanding, Oakridge is authorized to
issue 1,000 common shares without par value, all of which are
issued and outstanding, and Pacific Audiology is authorized to
issue 10,000 common shares without par value of which 200
common shares are issued and outstanding.
5.5 BENEFIT OF PURCHASER
The foregoing conditions are for the sole and exclusive benefit of the Purchaser
and may be waived in whole or part by it.
5.6 EMPLOYMENT AGREEMENT
The Vendor will have entered into an employment agreement and a non-competition
agreement with the Purchaser on terms and conditions satisfactory to the
Purchaser.
6. CONDITIONS OF THE VENDOR'S
OBLIGATIONS AT CLOSING
The obligations of the Vendor under Section 1 of the Agreement are subject to
the fulfilment on or before the Closing of each of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES
Representations and warranties of the Purchaser contained in Section 4 will be
true on and as of the Closing with the same effect as those such representations
and warranties have been made on and as of the Closing.
6.2 PAYMENT OF PURCHASE PRICE
The Vendor will have received from the Purchaser a cheque in the amount of
$40,000 and the Note.
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6.3 ALBERTA SECURITIES COMMISSION APPROVAL
Subject to the Vendor's satisfaction, the Purchaser will have received from the
Alberta Securities Commission approval for the issuance of the Capital Shares
pursuant to this Agreement.
7. GENERAL COVENANTS
7.1 VENDOR'S COVENANTS
The Vendor agrees and covenants the following:
(a) INVESTIGATION OF BUSINESS AND EXAMINATION OF DOCUMENTS.
The Vendor will provide and will cause the Companies to
provide during normal business hours access to, and will
permit the Purchaser and its representatives to make such
investigations of the operations, properties, assets and
records of the Companies and of its financial legal condition
as the Purchaser deems necessary or advisable to familiarize
itself with such operations, properties, assets, records or
other matters provided that the Purchaser gives to the Vendor
a 24-hour notice of such intention. Without limiting the
generality of the foregoing, the Vendor will permit the
Purchaser and its representatives to have access to the
premises used in connection with the business of the
Companies, and will produce inspection and provide copies to
the Purchaser of:
(i) all agreements and documents, leases, licences,
title documents, title opinions, insurance policies,
information relating to employees of the Companies,
customer lists, information relating to customers and
suppliers of the Companies, documents relating to all
indebtedness and credit facilities of the Companies,
documents relating to legal or administrative
proceedings, and all other documents of or in the
possession of the Companies or relating to the
business;
(ii) all minute books, share certificate books,
register of security holders,
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registers of transfers of securities, registers of
directors and other corporate documents of the
Companies;
(iii) all books, records, accounts, tax returns and
financial statements of the Companies; and
(iv) all other information which, in reasonable
opinion of the Purchaser's representatives, is
required in order to make an examination of the
Companies and the business;
(b) CONDUCT OF BUSINESS. Except as contemplated by this
Agreement or with prior written consent of the Purchaser, the
Vendor will cause the Companies to:
(i) operate the business only in the ordinary course
thereof, consistent with past practices;
(ii) take all actions within their control to ensure
that the representations and warranties in Section 3
hereof remain true and correct at the Closing, with
the same force and effect as if such representations
and warranties were made at the date of the Closing;
(iii) promptly advise the Purchaser of any facts that
come to their attention which would cause any of the
Vendor's representations and warranties herein
contained to be untrue with any respect;
(iv) take all action to preserve the business and the
goodwill of the Companies and their relationships
with customers, suppliers and others having business
dealings with them;
(v) maintain all the Companies' tangible properties
and assets in the same condition as they now exist,
ordinary wear and tear excepted;
(vi) maintain the books, records and accounts of the
Companies in the ordinary
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course and record all transactions on the basis
consistent with the past practice;
(vii) ensure that the Companies do not create, incur
or assume any long-term debt or create any
encumbrances upon any of the properties or assets or
guarantee or otherwise become liable for the
obligations of any other person or make any loans or
advances to any person;
(viii) ensure that the Companies do not terminate or
waive any right of substantial value of the business
of the Companies;
(ix) keep in full force all of the Companies' current
insurance policies;
(x) not take any action to amend the articles of
incorporation or by-laws of the Companies;
(xi) ensure that the Companies do not declare or pay
any dividends, redeem or repurchase any shares in the
capital of the Companies or make any other
distributions in respect of the shares of the
Companies; and
(xii) ensure that the Companies do not increase, in
any manner, the compensation or employee benefits of
any of their directors, officers or employees, or pay
or agree to pay to any of their directors, officers
or employees any pension, severance or termination
amount or other employee benefit;
(c) TRANSFER OF PURCHASED SHARES. At or before the Closing,
the Vendor will cause all necessary steps and corporate
proceedings to be taken in order to permit the Vendor's Shares
to be duly and regularly transferred to the Purchaser;
(d) RESIGNATION OF OFFICERS AND DIRECTORS. At or before the
Closing, the Vendor will cause each person who is a director
or officer of the Companies, other than
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such persons as may be designated in writing by the Purchaser,
to submit his written resignation as a director or officer of
the Companies which will be effective at the Closing; and
(e) RELEASES. At the Closing, the Vendor will execute, deliver
and cause ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ Der to execute and deliver
to the Companies and to the Purchaser a release in the form of
a draft release attached hereto as Schedule "B".
(f) FILING OF TAX RETURNS. Immediately following the Closing,
the Vendor will instruct his accountant to prepare and file as
of the date of the Closing all federal and provincial tax
returns and election forms and the tax returns of any other
jurisdiction required to be filed for the Companies.
7.2 PURCHASER'S COVENANTS
The Purchaser agrees and covenants to take all prudent steps to expeditiously
file or to cause to be filed a prospectus at the British Columbia Securities
Commission to ensure that Capital becomes a reporting issuer in British
Columbia.
8. CLOSING DOCUMENTS
At Closing:
(a) the Vendor will deliver or cause to be delivered to the
Purchaser the following:
(i) a certified copy of resolutions of the directors
of Pacific's and Oakridge's authorizing transfer of
the Vendor's Shares and the registration of the
Vendor's Shares in the name of the Purchaser and
authorizing the issuance of new certificates
representing the Vendor's Shares in the name of the
Purchaser;
(ii) the share certificates representing the Vendor's
Shares, duly endorsed for
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transfer;
(iii) a share certificate of Pacific representing
10,000 common shares without par value and a share
certificate of Oakridge representing 1,000 common
shares without par value registered in the name of
Hearing Clinics;
(iv) resignation of the following:
(A) the Vendor as a director and a president
of Pacific and Pacific Audiology;
(B) ▇▇▇▇▇▇ ▇▇▇▇▇ as a director of Oakridge;
(C) ▇▇▇▇▇▇ Der as a director and secretary
of Oakridge; and
(D) the Vendor as a director and a president
of Oakridge;
(v) the Vendor's legal counsel's opinion;
(vi) an Employment agreement and a non-competition
agreement executed by the Vendor; and
(vii) releases from ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Der and the
Vendor; and
(b) the Purchaser will deliver or cause to be delivered to the
Vendor the following:
(i) a certified cheque, bank draft or a solicitor's
trust cheque in the amount of $40,000;
(ii) the Note;
(iii) an employment agreement and a non-competition
agreement duly signed by Hearing Clinics.
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9. INDEMNIFICATION
9.1 BY THE VENDOR
The Vendor hereby agrees to indemnify and save the Purchaser harmless from and
against any claims, demands, actions, causes of action, damage, loss,
deficiency, cost, liability and expense which may be made or brought against the
Purchaser or which the Purchaser may suffer or incur as a result of, in respect
of or arising out of:
(a) any non-performance or non-fulfilment of any covenant or
agreement on the part of a Vendor contained in this Agreement,
or any document given in order to carry out the transactions
contemplated hereby;
(b) any misrepresentation, inaccuracy, incorrectness or breach
of any representation or warranty made by the Vendor contained
in this Agreement or contained in any document or certificate
given or to carry out the transactions contemplated hereby;
and
(c) all costs and expenses including, without limitation,
legal fees on a solicitor and client basis, incidental to,
arising from or in respect of the foregoing.
9.2 BY THE PURCHASER
The Purchaser hereby agrees to indemnify and save the Vendor harmless from and
against any claims, demands, actions, causes of action, damage, loss,
deficiency, cost liability and expense which may be made or brought against the
Vendor or which the Vendor may suffer or incur as a result of, in respect of or
arising out of any non-performance or non-fulfilment by Pacific of any covenant
or agreement contained in the Lease.
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10. GENERAL PROVISIONS
10.1 SURVIVAL
All the representations, warranties, covenants and agreements of the Vendor and
Purchaser contained in this Agreement will survive the Closing and payment of
the Purchase Price.
10.2 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Vendor and the
Purchaser pertaining to the share purchase and supersedes all prior agreements,
if any, understandings, negotiations and discussions, whether oral or written,
of the Vendor and Purchaser and there are no warranties, representations,
covenants or agreements between the Vendor and Purchaser in connection with the
share purchase except as herein set forth.
10.3 FURTHER ASSURANCES
The Vendor and the Purchaser hereby covenant and agree that at any time and from
time to time after the Closing will, at the request of the others, do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers, conveyances and
issuances as may be required for the better carrying out and performance of all
the terms of this Agreement.
10.4 NOTICE
Any notice, document or communication required or permitted to be given
hereunder will be in writing and will deemed to have been duly given if
delivered by hand, or telexed or by facsimile to the party concerned addressed
as follows:
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To the Purchaser:
HC HealthCare Hearing Clinic Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: Mr. ▇▇▇▇ Good
with a copy to:
Swinton & Company
▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Risk
To the Vendor:
110 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to any other address as may from time to time be notified in writing by any
of the Parties. Any notice, payment or other communication will be deemed to
have been given, if delivered by hand, on the day delivered, and if by
facsimile, on the day following the date of transmission; provided that if there
is at the time of mailing or with four business days thereof a mail strike,
slowdown or other labour dispute that might affect delivery by the mails, then
the notice payment or other communication will be effective only where actually
delivered.
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10.5 ASSIGNMENT
The rights of the Vendor hereunder shall not be assignable without the written
consent of the Purchaser.
10.6 SUCCESSORS AND ASSIGNS
This Agreement will be binding on and enure to the benefit of the parties hereto
and their respective heirs, executors and administrators, successors and
permitted assigns.
10.7 TIME OF ESSENCE
Time will be of the essence of this Agreement.
10.8 COUNTERPARTS
This Agreement may be executed in two or more counterparts or by facsimile, each
of which will be deemed to be an original, but all of which together will
constitute one and the same instrument, notwithstanding that all of the parties
are not signatories to the same counterpart or facsimile.
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10.9 GOVERNING LAW
This Agreement will be governed by and construed under the laws of the Province
of British Columbia.
10.10 SCHEDULES
The Schedules which are attached to this Agreement are incorporated into this
Agreement by reference and are deemed to be part of this Agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the day and year as above written.
HC HEALTHCARE HEARING
CLINICS LTD.
PER:
Authorized Signatory
HEALTHCARE CAPITAL CORP.
PER:
Authorized Signatory
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Signed, sealed and delivered )
by ▇▇▇▇ ▇. ▇▇▇▇▇▇ )
in the presence of: )
)
)
)
Name )
)
)
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Address ) /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
) ▇▇▇▇ ▇. ▇▇▇▇▇▇
)
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)
)
)
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Occupation )
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