SHARE PURCHASE AND OPTION AGREEMENT
This Share Purchase Agreement is made
as of the 16th day of June, 2016, between:
XXXX XXXXX, as applicable
in his personal capacity and as nominee for the Xxxx Xxxxx Family Trust (the “Vendor”)
– and –
EVENT CARDIO GROUP INC. (the
“Company”)
– and –
EVENT CARDIO CANADA INC. (“EC
Canada”)
- and -
9058583 CANADA INC. (“905”)
– and –
2419596 ONTARIO INC. (“241”)
– and –
8401144 CANADA INC. (“840”)
– and –
2399371 ONTARIO INC. (“239”)
– and –
GIANFRANCO (aka Xxxx) XXXXXXXXXXX
and
XXXXX XXXX and
THE BENTIVOGLIO FAMILY TRUST and
THE XXXX FAMILY TRUST and
TAUNTON RAVENSCROFT INC.
(collectively, the “Xxxx and Xxxxx Parties”)
(the Company, EC Canada, 905, 241,
840, 239 and the Xxxx and Xxxxx Parties together, the “ECG Parties”, and each, an “ECG Party”)
RECITALS:
| A. | The
Vendor is the registered and beneficial owner, as applicable in his personal capacity
and as nominee for the Xxxx Xxxxx Family Trust, of: |
| (I) | 29,812,500
shares of common stock in the capital of the Company (the “Xxxxx ECG Shares”); |
| (II) | 450 common
shares in the issued and outstanding capital of 840 (the “Xxxxx 840 Shares”); |
| (III) | 375 common
shares in the capital of 241 (the “Xxxxx 241 Shares”); and |
| (IV) | 1,000 common
shares in the capital of 905 (the “Xxxxx 905 Shares”). |
| B. | One
or more of the Xxxx and Xxxxx Parties, directly and/or indirectly, hold and control,
in the aggregate: |
| (I) | approximately
49 million shares of common stock in the capital of the Company; |
| (II) | the
other 450 common shares in the issued and outstanding capital of 840; |
| (III) | the
other 625 common shares in the issued and outstanding capital of 241; |
| (IV) | the
other 2,000 common shares in the issued and outstanding capital of 905; and |
| (V) | all
of the issued and outstanding capital of 239. |
| C. | The
Company is the direct 100% parent of EC Canada. |
| D. | The
Vendor has advanced certain shareholder loans to the Company in the aggregate amounts
of CDN$36,889.00 and US$13,548.32 (the “Xxxxx Advances”). |
| E. | Pursuant
to that certain promissory note dated the 22nd day of October, 2014, 905 was
indebted to 239 in the aggregate amount of CDN$79,106 (the “239 Debt”)
and as additional security for the 239 Debt and pursuant to that certain share pledge
agreement made as of the 22nd day of October, 2014, the Vendor pledged the
Xxxxx 905 Shares to and in favour of 239 (the “239 Pledge”). 239 assigned
the 239 Debt to the Company by assignment dated December 18, 2015 (the “239 Assignment”). |
| F. | The
Vendor and each of the ECG Parties (other than 840 and 239) are parties to the Minutes
of Settlement signed on the 6th day of May, 2016 (the “Minutes”)
which provide for, among other things, |
| (I) | the
sale by the Vendor to the Company, or as the Company may direct, of: |
| (1) | 20,000,000
of the Xxxxx ECG Shares; |
| (3) | the
Xxxxx 241 Shares; and |
(collectively,
the “Purchased Shares”) as well as the repayment by the Company to the Vendor of the Xxxxx Advances, in each
case on an “as is, where is” basis and for aggregate cash consideration payable jointly and severally by the Company,
840 and 905 to the Vendor of CDN$1,025,000; and
| (II) | the
grant by the Vendor to the Company of an option, exercisable in whole and not in part
by the Company at any one time on or before May 6, 2018, to purchase from the Vendor
the remainder 9,812,500 of the Xxxxx ECG Shares (the “Option Shares”)
on an “as is, where is” basis for cash consideration of US$500,000 (the “Option”). |
NOW
THEREFORE in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Section 1
– INTERPRETATION
In this
Agreement, in addition to the defined terms elsewhere herein:
| (1) | “Agreement”
means this Share Purchase and Option Agreement; |
| (2) | “Closing”
means the successful completion of the purchase and sale of the Purchased Shares and
the repayment of the Xxxxx Advances as contemplated in Section 5; |
| (3) | “Encumbrances”
means any security interest (whether contractual, statutory or otherwise), hypothec,
mortgage, trust or deemed trust (whether contractual, statutory or otherwise), lien,
mortgage, execution, levy, pledge, charge or other financial or monetary claim, real
property license, assignment, encumbrance, option, right, privilege or any adverse claim
of any nature or kind whatsoever, whether or not it has attached or been perfected, registered
or filed, whether secured, unsecured or otherwise; |
| (4) | “Escrow
Agent” means Goodmans LLP; |
| (5) | “Escrow
Agreement” has the meaning set out in Section 3.2. |
| (6) | “Governmental
Authority” means any Canadian or U.S. federal, provincial, state, municipal
or local, or any foreign government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal, or judicial or arbitral body or any other
public agency; |
| (7) | “Mutual
Release” has the meaning set out in Section 3.1; |
| (8) | “Parties”
means the Vendor and the ECG Parties and “Party” means any of them; |
| (9) | “Purchase
Price” has the meaning set out in Section 5.1; and |
| (10) | “Transaction”
means the transactions contemplated in this Agreement, including the Release and the
Escrow Agreement contemplated in Section 2, the sale and purchase of the Purchased
Shares, the repayment of the Xxxxx Advances, the granting of the Option and the exercise
of the Option. |
| (1) | The
division of this Agreement into sections and the insertion of headings are for convenience
of reference only and shall not affect the construction or interpretation of this Agreement. |
| (2) | The
terms “this Agreement”, “hereof”, “herein” and “hereunder”
and similar expressions refer to this Agreement and not to any particular section hereof. |
| (3) | Unless
the context otherwise requires, words importing the singular include the plural and vice
versa and words importing gender include all genders. |
| (4) | Every
use of the words “including” or “includes” in this Agreement
is to be construed as meaning “including, without limitation” or “includes,
without limitation”, respectively. |
Section 2
– RELEASE AND TERMINATION OF 239 PLEDGE AND 239 DEBT
| 2.1 | Cancellation
and Termination |
Each
of the Company, 239 and the Xxxx and Xxxxx Parties hereby irrevocably and unconditionally acknowledges and agrees that all agreements,
documents or other instruments evidencing, representing or comprising any and all liabilities and obligations of the Vendor under,
in relation to or in respect of the 239 Debt, including the 239 Pledge, are each hereby cancelled and terminated and are of no
further force and effect.
Each
of the Company, 239 and the Xxxx and Xxxxx Parties hereby irrevocably and unconditionally:
| (1) | forever
releases and discharges and re-assigns to the Vendor and his successors and assigns,
all of his right, title, interest, benefit and all Encumbrances which any one or more
of them has or had against, in and/or to all of the Vendor’s property, assets,
rights and undertaking, real and personal, moveable and immoveable, of whatsoever nature
and kind, including in the Xxxxx 905 Shares; |
| (2) | grants,
releases, remises, reconveys, transfers, assigns, discharges and forever quitclaims and
surrenders to the Vendor and his successors and assigns, all of the assets, properties
and undertakings of any kind or manner of the Vendor now covered or intended to be covered
by the Encumbrances granted to any of them to have and to hold all said assets, properties
and undertakings forever and absolutely freed, acquitted, discharged and released of
and from all Encumbrances, including the 239 Debt and the 239 Pledge, and from the obligations,
principal monies, interest and other monies whatsoever thereby secured and every trust,
proviso, covenant, matter and thing therein contained; |
| (3) | represents,
warrants and covenants that it has the power and capacity to enter into this Agreement
on its own behalf and that save for the 239 Assignment, none of the benefit of any of
the 239 Debt, the 239 Pledge or any agreement, instrument, document, pledge, security
interest or other encumbrance or lien, or any registration made in respect thereof has
been assigned; and |
| (4) | as
applicable, acknowledges and consents to all of the foregoing as a debtor, co-guarantor
or other obligor of the 239 Debt, and that all agreements, documents or other instruments
evidencing, representing or comprising any and all liabilities and obligations of the
Vendor under, in relation to or in respect of the 239 Debt, including the 239 Pledge,
are each hereby cancelled and terminated and are of no further force and effect. |
Section 3
– MUTUAL RELEASE AND ESCROW AGREEMENT
Concurrently
with, and as a condition to, the Closing, the Parties shall have executed and delivered to each other a comprehensive mutual release
as contemplated in the Minutes, substantially in the form attached hereto as Schedule “A” (the “Mutual Release”).
Concurrently
with, and as a condition to, the Closing, the Vendor, the Company and the Escrow Agent shall have executed and delivered to each
other an escrow agreement substantially in the form attached hereto as Schedule “B” (the “Escrow Agreement”).
Section 4 – RESIGNATIONS AND RELEASES
| 4.1 | Resignations
and Releases |
Effective
upon the date hereof:
| (1) | The
Vendor shall resign or shall have resigned each of the Vendor’s positions as a
director, officer and employee of each of the Company, 241, 905, 840 and EC Canada. |
| (2) | All
existing employment, consulting and other similar agreements and arrangements, written,
oral or otherwise, between the Vendor, on the one hand, and any one or more of the ECG
Parties, on the other hand, shall be and be deemed to be automatically terminated without
any further act or otherwise from or on behalf of any Party, and each Party hereby irrevocably
and unconditionally confirms and agrees that effective from and after the date hereof,
no such agreement or arrangement shall be or deemed to be of any further force or effect. |
| (3) | For
certainty and without limiting the foregoing, each Party hereby irrevocably and unconditionally
waives any rights that each had, has or may have pursuant to any employment, consulting
and other similar agreements and arrangements, including all rights with respect to notice
of termination, resignation or severance. |
| (1) | Prior
to or promptly upon Closing, each of the Company, 241, 905, 840 and EC Canada shall ensure
that all requisite documents, notices and other filings, including in respect of their
respective corporate records and minute books and all public corporate and securities
filings required by law, to reflect the resignation of the Vendor as a director and/or
officer thereof shall have been completed and filed with all applicable Governmental
Authorities. |
| (2) | Without
limiting the generality of Section 4.1(2), at or prior to the date hereof, each
of the Company, 241, 905, 840 and EC Canada shall duly complete and sign: |
| (a) | Business
Corporations Act (Ontario) Form 1’s for 241 and EC Canada; |
| (b) | Canada
Business Corporations Act Form 6’s for 905 and 840; and |
| (c) | applicable
corporate, securities and stock exchange filings for the Company, |
and
in the case of the forms required by Sections 4.2(2)(a) and 4.2(2)(b), deliver same to the Vendor upon Closing authorizing
and allowing the Vendor to have same filed with the applicable Governmental Authority, and the Vendor shall promptly file same
and provide evidence of same, and in the case of the forms required by Section 4.2(2)(c), promptly file same with the applicable
Governmental Authority upon Closing and provide evidence of same.
Section 5
– PURCHASE AND SALE OF SHARES AND REPAYMENT
| 5.1 | Purchase
and Sale and Repayment |
Subject
to the terms and conditions hereof, including the effectiveness and enforcement of Section 2, the Vendor hereby sells and
transfers all of the Vendor’s right, title and interest in and to the Purchased Shares, free and clear of all Encumbrances,
to the Company and as the Company hereby directs as follows:
| (a) | to
the Company, 20,000,000 of the Xxxxx ECG Shares; |
| (b) | to
840, the Xxxxx 840 Shares; |
| (c) | to
the Company, the Xxxxx 241 Shares; and |
| (d) | to
905, the Xxxxx 905 Shares, |
and
the Company, 840 and 905 hereby purchases and receives for cancellation from the Vendor their respective Purchased Shares, in
each case on an “as is, where is” basis, and the Company hereby also repays to the Vendor the Xxxxx Advances, for
aggregate cash consideration payable jointly and severally by the Company, 840 and 905 to the Vendor of CDN$1,025,000 (the “Purchase
Price”).
| 5.2 | Purchase
Price Payment |
The
Company, 840 and 905 shall jointly and severally pay the Purchase Price to the Vendor, or as the Vendor may direct, concurrently
with their execution and delivery of this Agreement to the Vendor by wire transfer of immediately available funds to such bank
account as is designed by the Vendor prior to or on the date hereof.
| 5.3 | Delivery
of Purchased Shares and Instructions |
To complete
the purchase and sale contemplated in this Section 5 and subject to its receipt of the Purchase Price in immediately available
funds, the duly executed and delivered Mutual Release, the duly executed and delivered Escrow Agreement and the duly completed
and signed forms contemplated in Section 4.2:
| (a) | promptly
upon Closing, together with the documents to be delivered by the Purchaser to the Vendor
at Closing pursuant to Section 5.3(c), the Vendor shall deliver or cause to be delivered
to the Company’s transfer agent the original certificate in the Vendor’s
possession and control representing the Xxxxx ECG Shares, duly endorsed (with signature
guarantee) with irrevocable written instructions to (i) return to the Company and
cancel the 20,000,000 Xxxxx ECG Shares and (ii) issue a new original certificate
for the Option Shares and to deliver same to the Escrow Agent; |
| (b) | at
the Closing, the Vendor shall deliver to the Company forms of transfer to transfer the
Xxxxx 241 Shares, the Xxxxx 840 Shares and the Xxxxx 905 Shares to the Company, 840 and
905, respectively, it being acknowledged and confirmed by the ECG Parties that the original
share certificates representing such Purchased Shares are in the corporate minute books
of 241, 840 and 905, all of which are in the possession and control of the ECG Parties;
and |
| (c) | the
Purchaser shall deliver to the Vendor, for onward delivery to the Company’s transfer
agent pursuant to Section 5.3(a), in each case to the satisfaction of the Company’s
transfer agent: |
| (i) | | a
Board of Directors’ Resolution authorizing the return and cancellation of the 20,000,000
Xxxxx ECG Shares to the Company’s authorized shares and that authorizes the hold
harmless form; |
| (ii) | | the
Hold Harmless Rescission on Company letterhead with an authorized signature; and |
| (iii) | | fees/confirmation
that this request is to be billed to the Company. |
| 5.4 | Allocation
of Purchase Price |
The
Parties agree that the Purchase Price shall be allocated as follows:
| (a) | CDN$36,889.00
and (CDN$ equivalent of) US$13,548.32 to the Xxxxx Advance; |
| (b) | CDN$50.00
in respect of the Xxxxx 840 Shares; |
| (c) | CDN$37.50
in respect of the Xxxxx 241 Shares; and |
| (d) | CDN$1.00
in respect of the Xxxxx 905 Shares; and |
| (e) | the
remainder in respect of the 20,000,000 Xxxxx ECG Shares. |
Each
of the Company, 840 and 905 acknowledges and agrees that all of the Purchased Shares and, as applicable, the Option Shares,
are purchased on an “as is, where is” basis and that the Company, 840 and 905 will each accept all of their respective
Purchased Shares and, as applicable, the Option Shares, as they exist on the date hereof and thereof. Except as otherwise specifically
stated herein in Section 7.1 only, no representation, warranty or condition, whether statutory, express or implied, oral
or written, legal, equitable, conventional, collateral or otherwise is being given by the Vendor in this Agreement or in any instrument
furnished in connection with this Agreement, including as to: (i) the condition, value, fitness for purpose or marketability
of the Purchased Shares or the Option Shares; (ii) any consents, approvals, licenses, registrations or conditions required
by any Governmental Authority in respect of or pertaining to any of the Purchased Shares, the Option, the Option Shares or the
Transactions; and (iii) any other matter or thing whatsoever in respect of or pertaining to the Purchased Shares, the Option,
the Option Shares or the Transaction. The Company, 840 and 905 each further acknowledges, confirms and agrees that it has, and
shall be deemed to have, relied entirely on its own inspection and investigation in proceeding with the Transaction and the Option
and shall have no recourse, directly or indirectly, against the Vendor or its affiliates or any of the property or assets of the
Vendor or its affiliates.
The Parties hereby
agree that the Company, 840 and 905, collectively, are solely liable and responsible for, and shall pay when due, all applicable
federal and provincial taxes (other than taxes in respect of income) that may be exigible in connection with the Transaction and
the exercise of the Option and purchase of Option Shares, as applicable. The Company, 840 and 905 jointly and severally agree
to indemnify and save the Vendor, its affiliates and associates, and their respective successors and assigns, harmless from and
against all claims and demands for payment of any such applicable taxes, including any liability or costs incurred as a result
of any failure by the Company, 840 and/or 905 to pay such taxes when due.
Section 6
– OPTION
| (1) | The
Vendor hereby grants to the Company the non-transferable and non-assignable right to
purchase for cancellation from the Vendor, on the same terms, conditions and limitations
(including on an “as is, where is” basis) as applicable to the Purchased
Shares, all but not less than all of the Option Shares for US$500,000.00, exercisable
by the Company at any one time from the date hereof to the end of business on May 6,
2018. |
| (2) | At
the Closing, subject to its receipt of the Purchase Price in immediately available funds,
a duly executed and delivered Mutual Release, the duly executed and delivered Escrow
Agreement and the duly completed and signed forms contemplated in Section 4.2, the
Vendor shall deliver to the Company’s transfer agent the irrevocable written instructions
pursuant to in Section 5.3(a) and to the Escrow Agent a form of transfer executed
(with signature guarantee) in blank for the Option Shares. |
| (3) | Notwithstanding
the deposit into escrow as provided in Section 6.1(2), unless and until the Option
has been exercised in strict compliance with this Section 6 and the Option Shares
have been purchased by the Company for cancellation, the Vendor remains the sole beneficial
holder of the Option Shares and shall retain all rights in connection therewith, including
the right to vote and attend meetings and all other rights as a holder of the Company’s
common stock. |
| (4) | Notwithstanding
any other term or condition in this Agreement, the Option and all rights, interests and
benefit therein, and the obligations of the Vendor thereunder, shall not be transferrable
or assignable, and, unless the Vendor has provided his written consent in advance, in
the Vendor’s sole and absolute discretion, shall only be exercisable directly by
the Company in strict compliance with this Section 6. |
| (5) | None
of the Vendor, its affiliates and associates, its and their agents, representatives and
advisors and their respective successors and assigns shall be liable to the Company or
any other ECG Party for any loss resulting from (1) a decline in the market value
of any Option Shares or (2) any change in the market price of the Option Shares
between the date of grant and the time of purchase of the Option Shares pursuant to this
Section 6. |
| (1) | The
Option shall be exercised by the Company’s delivery to the Vendor and the Escrow
Agent of an irrevocable and unconditional written notice confirming the Company’s
exercise of the Option to purchase for cancellation all of the Option Shares, accompanied
by the payment by wire transfer to the Escrow Agent, in trust, of US$500,000.00 in immediately
available funds. |
| (2) | Upon
indefeasible receipt of US$500,000.00 in immediately available funds, the Escrow Agent
shall release from escrow and deliver to the Company the certificate and transfer form
delivered in escrow pursuant to Section 6.1(2), to complete the Company’s
purchase for cancellation of Option Shares, all as set out in the Escrow Agreement. |
Unless
duly exercised by the Company prior to the end of business on May 6, 2018 in full compliance with this Section 6 and
the other applicable terms and conditions of this Agreement and the Escrow Agreement, the Option shall automatically (without
any notice, action or otherwise by or to the Vendor or any ECG Party) terminate, expire and be null and void and of no further
force or effect at the end of business on May 6, 2018 for all of the Option Shares, and the Vendor shall thereafter be entitled
to provide a written direction to the Escrow Agent to release from escrow and return the certificate and transfer form delivered
in escrow pursuant to Section 6.1(2) to the Vendor as the Vendor may direct, in its sole and absolute discretion.
SECTION 7
– REPRESENTATIONS AND WARRANTIES
| 7.1 | Vendor’s
Representations |
The
Vendor represents and warrants to the Company, 840, 241 and 905, and acknowledges that the Company, 840, 241 and 905 are relying
upon such representations and warranties in connection with the purchase and sale of the Purchased Shares and the Option Shares,
as applicable, and the entering into of this Agreement, that:
| (a) | the
Vendor, as applicable in his personal capacity and as nominee for the Xxxx Xxxxx Family
Trust, has registered and beneficial ownership of and title to the Purchased Shares; |
| (b) | the
Vendor has all necessary power, authority and capacity to enter into this Agreement and
to perform its obligations hereunder; |
| (c) | the
execution and delivery of this Agreement and the consummation of the Transaction has
been duly authorized by all necessary action on the part of the Vendor; |
| (d) | the
Vendor is not a non-resident of Canada for purposes of the Income Tax Act (Canada);
and |
| (e) | this
Agreement constitutes a legal, valid and binding obligation of the Vendor, enforceable
against it in accordance with its terms. |
The
Vendor’s representations and warranties contained in this Agreement shall survive the Closing and shall terminate upon the
second (2nd) anniversary of the Closing, provided that the Vendor’s representations and warranties
in this Section 7.1 shall be, and be deemed to be, repeated (as applicable, in respect of the Option exercise and the Option
Shares only) for the completion of the Option exercise and the purchase for cancellation by the Company of the Option Shares and
such representations and warranties (as so repeated or deemed repeated) shall terminate upon the second (2nd) anniversary
of the completion of the purchase for cancellation by the Company of the Option Shares.
| 7.2 | ECG
Parties’ Representations |
The
ECG Parties jointly and severally represent and warrant to the Vendor, and acknowledges that the Vendor is relying upon such representations
and warranties in connection with the purchase and sale of the Purchased Shares and the Option Shares, as applicable, and the
entering into of this Agreement, that:
| (a) | each
of the ECG Parties has all necessary corporate power, authority and capacity to enter
into this Agreement and to perform its obligations hereunder |
| (b) | the
execution and delivery of this Agreement and the consummation of the Transaction contemplated
herein has been duly authorized by all necessary corporate action on the part of each
of the ECG Parties; |
| (c) | this
Agreement constitutes a legal, valid and binding obligation of each of the ECG Parties,
enforceable against each of them in accordance with its terms; |
| (d) | save
for the Company, none of the other ECG Parties is a non-resident of Canada for purposes
of the Income Tax Act (Canada); |
| (e) | the
Company, 840 and 905 each has unrestricted funds and cash on hand necessary to complete
the Transaction; |
| (f) | no
notice, filing, consent, approval, order or authorization of or registration, qualification,
designation, declaration or filing with any Governmental Authority by any Party is required
in connection with the consummation of each aspect of the Transactions; |
| (g) | the
Transaction and the purchase for cancellation from the Vendor by each of the Company,
840 and 905 of their respective Purchased Shares and Option Shares, as applicable, pursuant
to this Agreement are in compliance with all applicable Canadian and U.S. securities
laws, regulations, rules, rulings and orders together with applicable published policy
statements, notices, orders, blanket rulings and other regulatory instruments of the
securities regulatory authorities of Canada and the U.S., and no prospectus, registration
statement or similar document, or any other filing, report, notice, certificate or similar
document or instrument need be prepared, delivered or filed prior to, at or upon theClosing
by the Vendor or any other Party, other than any prescribed filings required to be filed
by the Company upon Closing; and |
| (h) | each
of the Company, 840 and 905 is an informed and sophisticated purchaser and is experienced
in the evaluation and purchase property and assets such as the Purchased Shares, has
conducted and has had sufficient time and opportunity to conduct, any and all such inspections
and investigations and obtained all such advice (legal, financial and otherwise) concerning
the Purchased Shares as each of them deems appropriate and each has relied solely on
its own inspection and investigations and the advice of its legal counsel in entering
into this Agreement and consummating the Transaction. |
The
ECG Parties’ joint and several representations and warranties contained in this Agreement shall survive the Closing and
shall terminate upon the second (2nd) anniversary of the Closing, provided that the Company’s representations
and warranties in this Section 7.2 shall be, and be deemed to be, repeated for the completion of the Option exercise and
the purchase for cancellation by the Company of the Option Shares and such representations and warranties (as so repeated or deemed
repeated) shall terminate upon the second (2nd) anniversary of the completion of the purchase for cancellation by the
Company of the Option Shares.
SECTION 8
– GENERAL
The
Vendor, on the one hand, and each ECG Party, on the other hand, shall each take or cause to be taken such action and shall execute
and deliver or cause to be executed and delivered to the ECG Parties and the Vendor, respectively, such documents and further
assurances (including transfer documents and minute book documents) as may be reasonably necessary or requested by the other to
give effect to this Agreement and the intention and terms and conditions hereof.
The
Vendor, on the one hand, and each ECG Party, on the other hand, each acknowledges and agrees that the other Party would be damaged
irreparably if any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each Party agrees that the other Party shall be entitled, without the necessity of pleading or proving
irreparable harm or lack of an adequate remedy at law or posting any bond or other security, to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof.
Any
notice or other communication under this Agreement shall be in writing and may be delivered personally or transmitted by electronic
means, addressed as follows:
in
the case of the Vendor, as follows:
0
Xxxxxxx Xxxxx
Xxxxxxx, XX X0X $W3
Telephone
No.: (905) 680-9010 ext. 203
Email:
xxxxxx0@xxxxxx.xx
with
a copy to:
Goodmans
LLP
0000 - 000 Xxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxx
Xxxxxxx
Telephone
No.: (000) 000-0000
Email:
xxxxxxxx@xxxxxxxx.xx
and
in the case of the ECG Parties, as follows:
0000
Xxxxxxxxxx Xxxxx, #0
Xxxxxxxxxxx, XX X0X 0X0
Attention:
Xxxx Xxxxxxxxxxx
Telephone
No.: (000) 000-0000
Email: xxxx@xxxxxxxxxxxxxxxx.xxx
with
a copy to:
Capo
Xxxx LLP
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX X0X 0X0
Attention:
Xxxxxxxx Xxxxxxx
Telephone
No.: (905) 850-7000 ext. 262
Email: xxxxxxxx@xxxxx.xx
| 8.4 | Full
Understanding and Independent Legal Advice |
By signing
this Agreement, the Vendor, on the one hand, and each ECG Party, on the other hand, each expressly confirms and agrees that: (i) such
Party has had an adequate opportunity to read and consider the terms set out herein, including the Resignation and Termination
in Section 2, and that such Party fully understands each of the terms and provisions herein and therein and their respective
consequences; (ii) such Party has been advised to consult with legal counsel of such Party’s choosing and that such
Party has obtained such legal or other advice as such Party has considered advisable; and (iii) such Party is signing this
Agreement voluntarily, without coercion.
Each
Party shall pay its respective legal, accounting and other professional advisory fees, costs and expenses incurred in connection
with the negotiation, preparation and execution of this Agreement and all documents and instruments executed or delivered pursuant
to this Agreement, as well as any other fees, costs and expenses incurred.
| 8.6 | Entire
Agreement and Amendment |
This
Agreement and the attached schedules shall constitute the entire agreement between the Parties with respect to the subject matter
and supersede all prior negotiations and understandings other than the Minutes. There are no representations, warranties, terms,
conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly
set forth in this Agreement and the Minutes. This Agreement may not be amended or modified in any respect except by written instrument
executed by the Vendor and the Company.
In the
event of any conflict or inconsistency between the provisions of this Agreement, and any other agreement, document or instrument
executed or delivered in connection with the Transaction, Option exercise or this Agreement, other than the Minutes, the provisions
of this Agreement shall prevail to the extent of such conflict or inconsistency. In the event of any conflict or inconsistency
between the provisions of this Agreement and the Minutes, the provisions of the Minutes shall prevail to the extent of such conflict
or inconsistency.
If any
provision of this Agreement or any document delivered in connection with this Agreement is partially or completely invalid or
unenforceable, the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other
provision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted.
The invalidity or unenforceability of any provision in one jurisdiction shall not affect such provision’s validity or enforceability
in any other jurisdiction.
| 8.9 | Enurement
and Assignment |
This
Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns,
provided that this Agreement shall not be assignable or assigned without the prior written consent of the Vendor and the Company.
This
Agreement and matters arising in connection with this Agreement shall be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable therein. Each Party hereto irrevocably and unconditionally
submit to the jurisdiction of the courts in the Province of Ontario in connection with any matter arising from the Minutes or
this Agreement, including the specific performances remedies in Section 8.2
This
Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall
constitute one and the same agreement. Transmission by electronic means of an executed counterpart of this Agreement shall be
deemed to constitute due and sufficient delivery of such counterpart.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF the Parties have duly executed this Agreement as of the date first written above.
| |
|
/s/ Xxxx Xxxxx |
| Witness |
XXXX
XXXXX |
| |
|
THE
XXXXX FAMILY TRUST |
| Per: |
/s/ Xxxx
Xxxxx |
| |
Name: |
| |
Title:
|
| |
|
I/we
have the authority to bind the corporation. |
| |
|
EVENT
CARDIO GROUP INC. |
| Per: |
s/ Xxxx
Xxxxxxxxxxx |
| |
Name: Xxxx Xxxxxxxxxxx |
| |
Title:President |
| |
|
| |
|
I/we
have the authority to bind the corporation. |
| |
|
EVENT
CARDIO (CANADA) INC. |
| Per: |
/s/
Xxxx Xxxxxxxxxxx |
| |
Name: Xxxx Xxxxxxxxxxx |
| |
Title:President |
| |
|
I/we
have the authority to bind the corporation. |
| |
|
9058583
CANADA INC. |
| Per: |
s/
Xxxx Xxxxxxxxxxx |
| |
Name: Xxxx Xxxxxxxxxxx |
| |
Title: President |
| |
|
I/we
have the authority to bind the corporation. |
| |
|
2419596
ONTARIO INC. |
| Per: |
/s/
Xxxx Xxxxxxxxxxx |
| |
Name: Xxxx Xxxxxxxxxxx |
| |
Title:President |
| |
|
I/we
have the authority to bind the corporation. |
| |
|
8401144
CANADA INC. |
| Per: |
/s/
Xxxx Xxxxxxxxxxx |
| |
Name: Xxxx Xxxxxxxxxxx |
| |
Title: President |
| |
|
I/we
have the authority to bind the corporation. |
| |
|
2399371
ONTARIO INC. |
| Per: |
/s/
Xxxxx Xxxx |
| |
Name: Xxxxx Xxxx |
| |
Title:President |
| |
|
I/we
have the authority to bind the corporation. |
| /s/ Xxxxxx Xxxx |
|
/s/
Xxxx Xxxxxxxxxxx |
| Witness |
GIANFRANCO
(aka Xxxx) XXXXXXXXXXX |
| /s/ Xxxxxx Xxxx |
|
/s/
Xxxxx Xxxx |
| Witness |
XXXXX
XXXX |
| |
|
THE
BENTIVOGLIO FAMILY TRUST |
| Per: |
/s/ Xxxx
Xxxxxxxxxxx |
| |
Name: Gianfranco
(aka Xxxx) Bentivoglio |
| |
Title: Trustee |
| |
|
THE
XXXX FAMILY TRUST |
| Per: |
/s/ Xxxxx
Xxxx |
| |
Name: Xxxxx Xxxxxx
Xxxx |
| |
Title: Trustee |
| |
|
TAUNTON
RAVENSCROFT INC. |
| Per: |
/s/
Xxxxx Xxxx |
| |
Name: Xxxxx Xxxxxx
Xxxx |
| |
Title: President
|
| |
|
I/we
have the authority to bind the corporation. |
SCHEDULE “A”
FORM OF MUTUAL RELEASE
SCHEDULE “B”
FORM OF ESCROW AGREEMENT
