ASSET PURCHASE AGREEMENT BY AND AMONG HEARINGLife USA, INC., AS BUYER AND HEARING ASSOCIATES OF PENSACOLA, P.A. AS SELLER AND STEVE R. CHARLTON AND CAROL WHITCOMB POWELL, PHD, CCCA Effective as of October 5, 2007

Exhibit 2.1

ASSET PURCHASE AGREEMENT

BY AND AMONG

HEARINGLife USA, INC., AS BUYER

AND

HEARING ASSOCIATES OF PENSACOLA, P.A.

AS SELLER

AND

XXXXX X. XXXXXXXX

AND

XXXXX XXXXXXXX XXXXXX, PHD, CCCA

Effective as of

October 5, 2007

ASSET PURCHASE AGREEMENT

BY AND AMONG

HEARINGLife USA, INC.

AND

HEARING ASSOCIATES OF PENSACOLA, P.A.

AND

XXXXX X. XXXXXXXX

AND

XXXXX XXXXXXXX XXXXXX, PHD, CCCA

TABLE OF CONTENTS


		PAGE
DEFINITIONS		1

ARTICLE I. The Basic Framework of the Transaction		5
1.1	Sale and Transfer of Assets	5
1.2	Excluded Assets	6
1.3	Assumed Liabilities	6
1.4	Purchase Price, Terms of Payment and Closing Deliveries	7
1.5	Allocation	8
1.6	No Appraisal Rights	8

ARTICLE II. Representations and Warranties of the Company and The Shareholders		8
2.1	Organization and Good Standing; Ownership	8
2.2	Tax Matters	9
2.3	Legal Proceedings, Etc.	9
2.4	Intellectual Property	9
2.5	Material Proposals, Contracts, Etc	10
2.6	Assets	11
2.7	Environmental Matters	11
2.8	Compliance with Legal Requirements	11
2.9	Contracts; No Defaults	12
2.10	Customer Relationships	12
2.11	Employee Benefits	12
2.12	Non-Contravention; Consents	12
2.13	Absence of Certain Changes and Events	13
2.14	Authorization	13
2.15	Financial Statements and Undisclosed Liabilities	13
2.16	Products, Services and Warranties	13
2.17	Insurance	14
2.18	Employee Matters	14
2.19	Leased Premises	14


2.20	Accounts Receivable	14
2.21	Brokers or Finders	15
2.22	Disclosure	15

ARTICLE III. Representations and Warranties of the Buyer		15
3.1	Corporate Standing	15
3.2	Non-Contravention	15
3.3	Authorization	15
3.4	Brokers or Finders	15
3.5	Corporate Standing - Guarantor	15
3.6	Guarantor Affiliation	15
3.7	Guarantor Authorization	15

ARTICLE IV. Tax Matters		16
4.1	Tax and Assessment Allocations	16
4.2	Tax Cooperation	16

ARTICLE V. Post-Effective Covenants		16
5.1	Assistance in Proceedings	16
5.2	Customer and Other Business Relationships	16
5.3	Forwarding of Payments	17
5.4	Assignment of Contracts	17
5.5	Retention of Records	17
5.6	Name Change	17
5.7	Noncompetition	17
5.8	Employees	18

ARTICLE VI. Survival and Indemnification		18
6.1	Survival of Representations and Warranties; Limitations	18
6.2	Indemnification	18
6.3	Procedure	19
6.4	Right of Offset	20

ARTICLE VII. Administrative Provisions		20
7.1	Further Assurances and Actions	20
7.2	Waivers and Amendments	20
7.3	Notices	20
7.4	Headings	21
7.5	Assignment	21
7.6	Exhibit and Schedule References	21
7.7	Article and Section References	21
7.8	Agreement Not Construed Against Drafter	21
7.9	Due Diligence	22
7.10	Counterparts; Facsimile	22
7.11	No Third-Party Beneficiaries	22
7.12	Expenses	22
7.13	Entire Agreement	22
7.14	Irreparable Injury	22
7.15	Governing Law; Venue	22
7.16	Attorney’s Fees	23
7.17	Severability	23
7.18	Pre-Closing Accounts Receivable	23

SCHEDULES AND EXHIBITS


Exhibit A		Form of Xxxx of Sale and Assignment
Exhibit B		Employment Agreement
Exhibit C		Promissory Note
Exhibit D		Security Agreement
Exhibit E		Guaranty

Schedule 1.1(a)		Inventory
Schedule 1.1(b)		Personal Property
Schedule 1.1(c)		Equipment
Schedule 1.1(d)		Assumed Contracts
Schedule 1.1(f)		Permits and Licenses
Schedule 1.1(g)		Company Intellectual Property
Schedule 1.1(h)		Third Party Claims of Company
Schedule 1.1(n)		Company Information
Schedule 1.2		Excluded Assets
Schedule 1.3(d)		Other Assumed Liabilities
Schedule 1.3(e)		Employees’ Paid Time Off
Schedule 2.1(b)		Shareholders List
Schedule 2.3		Litigation
Schedule 2.4(b)		Licensing Fees
Schedule 2.4(d)		Company Licenses
Schedule 2.4(e)		No Infringement of Company Intellectual Property
Schedule 2.5		Material Contracts
Schedule 2.5(a)		Contract/Customer Lists
Schedule 2.12		Non-Contravention; Consents
Schedule 2.15		Financial Statements
Schedule 2.16		Products, Services and Warranties
Schedule 2.17		Insurance
Schedule 2.18(a)		Company Employee List
Schedule 2.18(b)		Employment Compliance
Schedule 2.19		Leased Premises
Schedule 5.8		Key Employees
Schedule 7.18		Pre-Closing Receivables

iii

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (the “Agreement”) is effective as of October 5, 2007 (the “Effective Date”), by and among HEARINGLife USA, Inc., a Delaware corporation (the “Buyer”), and Hearing Associates of Pensacola, P.A., a Florida professional association (the “Company” or the “Seller”), and Xxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxx Xxxxxx, PhD, CCCCA, the shareholders of the Company (the “Shareholders”).

RECITALS

The Company desires to sell, and the Buyer desires to acquire from the Company, certain of the assets of the Company on the terms and subject to the conditions set forth in this Agreement.

AGREEMENT

NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants set forth below, the Buyer, the Seller and the Shareholders agree as follows:

DEFINITIONS & TERMS OF USE

Definitions. As used in this Agreement, the following terms have the following meanings:

“Affiliate” means, with respect to any Person, any member of such Person’s family, and all other Persons controlling, controlled by, or under common control with such Person.

“Benefit Arrangement” is defined as any benefit arrangement, obligation, custom, or practice, whether or not legally enforceable, to provide benefits, other than salary, as compensation for services rendered, to present or former directors, employees, agents, or independent contractors, other than any obligation, arrangement, custom or practice that is a Seller Plan, including, without limitation, employment agreements, consulting agreements, severance agreements, executive compensation arrangements, incentive programs or arrangements, sick leave, vacation pay, severance pay policies, salary continuation for disability, consulting, or other compensation arrangements, workers’ compensation, retirement, deferred compensation, bonus, stock option or purchase, hospitalization, medical insurance, life insurance, tuition reimbursement or scholarship programs, any plans subject to Section 125 of the Code, and any plans providing benefits or payments in the event of a change of control, change in ownership, or sale of a substantial portion (including all or substantially all) of the assets of any business or portion thereof, in each case with respect to any employee of the Company.

“Xxxx of Sale” means the Xxxx of Sale and Assignment in substantially the form attached hereto as Exhibit A.

“Business” means the Company’s business of the sale and support of hearing aids and related equipment and accessories.

“COBRA” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code §4980B.

“Code” means the Internal Revenue Code of 1986, as amended.

“Competitive Business” means an entity that sells and supports hearing aids and related equipment and accessories within a thirty (30) mile radius of any of the Seller’s existing locations or, with respect to the Seller, any locations opened during either of the Shareholders’ employment with the Buyer and at which either Shareholder has rendered substantial services and with respect to any individual Shareholder, any locations opened while the Shareholder was employed by Buyer and at which the Shareholder has rendered substantial services.

“Contract” means any agreement, contract, lease, obligation, promise, or undertaking (whether written or oral and whether express or implied) that is legally binding.

“Employment Agreement” means the Employment Agreement in substantially the form attached hereto as Exhibit B, which the Shareholders will enter into with the Buyer.

“Encumbrance” means any charge, claim, debt, community property interest, condition, equitable interest, Lien, option, pledge, security interest, personal property lease (whether operational or financial), mortgage, right of way, easement, encroachment, servitude, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

“ERISA” is defined as the Employee Retirement Income Security Act of 1974, as amended, and all regulations and rules issued thereunder, or any successor law.

“ERISA Affiliate” is defined as any Person that, together with the Company, would be or was at any time treated as a single employer under Section 414 of the Code or Section 4001 of ERISA and any general partnership of which the Company is or has been a general partner.

“Governmental Body” means any (a) federal, state, local, municipal, foreign, or other government authority or subdivision thereof; (b) governmental or quasi-governmental authority of any nature; or (c) other body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.

“Guaranty” mean the Guaranty in substantially the form attached hereto as Exhibit E, which Sonic Innovations, Inc. will execute for the benefit of the Seller.

“Intellectual Property” means all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, and whether arising under United States or foreign common or statutory law, granted by contract, license, or otherwise and including, without limitation, all (a) Internet domain names, trademarks, service marks, trade names, trade dress, slogans, logos, together with all adaptations, derivations and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith; and (b) trade secrets, know-how, technical information,

customer and supplier lists, pricing and cost information, and business and marketing plans and proposals.

“Knowledge” means actual knowledge assuming reasonable investigation and due inquiry. Knowledge with respect to a corporation is deemed to be the actual knowledge of any of its officers or directors.

“Leased Premises” means the premises leased by the Company, as more particularly described in Schedule 2.19.

“Legal Requirement” means any federal, state, local, municipal, foreign, international, multi-national, or other administrative Order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty in effect on the date of this Agreement.

“Liability” means, with respect to any Person, any liability, payable or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be reflected or disclosed on the financial statements of such Person or the notes thereto.

“Licenses” means any license, sublicense or other Contract by which the Company has granted any rights to a third party to use any Intellectual Property or any license, sublicense or other contract by which a third party has granted rights to the Company to use any Intellectual Property.

“Lien” means any mortgage, pledge, lien, encumbrance, charge, or other security interest other than (a) liens for Taxes not yet due and payable, (b) purchase money liens and liens securing rental payments under capital lease arrangements, and (c) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.

“Order” means any award, decision, injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body or by any arbitrator.

“Ordinary Course of Business” means an action taken by a Person if:

(a) such action is consistent with the standard course of conduct of a Person operating in a similar industry or business in the ordinary course of the normal day-to-day, month-to-month or year-to-year operations of such Person; and

(b) such action is not required to be authorized by the board of directors of such Person (or by any Person or group of Persons exercising similar authority).

“Person” means any individual, partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, unincorporated organization, other legal entity or governmental entity or any department, agency or political subdivision thereof.

“Proceeding” means any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought,

conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

“Promissory Note” means the Promissory Note in substantially the form attached hereto as Exhibit C.

“Real Property” means all of the leasehold interests in real estate and other real property interests that are owned or leased by the Company and used or useful in the conduct of the Business.

“Security Agreement” means the Security Agreement in substantially the form attached hereto as Exhibit D, pursuant to which the Buyer will grant a security interest in the Assets to the Seller.

“Seller Benefit Arrangement” is defined as any Benefit Arrangement sponsored or maintained by the Company or with respect to which the Company or any ERISA Affiliate has or may have any Liability as of the Effective Date, in each case with respect to any employee of the Company.

“Seller Plan” is defined as, as of the Effective Date, any Employee Benefit Plan (as defined in Section 3(3) of ERISA) for which the Company is the “plan sponsor” (as defined in Section 3(16)(B) of ERISA) or any Employee Benefit Plan currently or formerly maintained by the Company or to which the Company or any ERISA Affiliate is obligated to make payments (including any Multiemployer Plan), in each case with respect to any employee of the Company.

“Tax” means any tax or similar governmental charge, duty, impost, license or registration fee, custom duty or levy (including without limitation income taxes, franchise taxes, capital stock taxes, license taxes, profit taxes, transfer taxes or fees, registration taxes, sales taxes, use taxes, gross receipts taxes, value added taxes, employment taxes, excise taxes, ad valorem taxes, property taxes, environmental taxes (including taxes under Code Section 59A), real property taxes, personal property taxes, withholding taxes, payroll taxes, employment taxes, severances taxes, stamp taxes, occupation taxes, premium taxes, social security (or similar) taxes, unemployment taxes, disability taxes, alternative or add-on minimum taxes, estimated taxes or windfall profit taxes or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner) together with any related penalties, fines, additions to tax or interest, whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Person, imposed by any Governmental Body.

“Tax Return” means any return (including any information return), report, statement, schedule, attachment, notice, form, estimate, claim for refund, or declaration relating to Taxes required to be filed with any Governmental Body in connection with the determination, assessment, collection or payment of any Tax, including any amendment thereof.

“Threatened” means any demand or statement that has been made (orally or in writing) or any notice that has been given (orally or in writing), or any other event that has occurred or any other circumstances that exist, that would lead a prudent Person to conclude that a claim, Proceeding, dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise pursued in the future.

Certain Other Definitions. The following terms are defined in the Sections of the Agreement indicated:


Term		Section
“Agreement”		Preamble
“Assets”		Section 1.1
“Assumed Contracts”		Section 1.1(d)
“Buyer”		Preamble
“Assumed Liabilities”		Section 1.3
“Claim”		Section 6.3(a)
“Company”		Preamble
“Effective Date”		Preamble
“Excluded Assets”		Section 1.2
“Excluded Liabilities”		Section 1.2
“Financial Statements”		Section 2.15
“Indemnitee”		Section 6.3(a)
“Indemnitor”		Section 6.3(a)
“Inventory”		Section 1.1(a)
“Purchase Price”		Section 1.4(a)
“Representations”		Section 6.1

ARTICLE I.

THE BASIC FRAMEWORK OF THE TRANSACTION

1.1 Sale and Transfer of Assets. Subject to the terms and conditions of this Agreement, at the Effective Date, the Company will sell, assign, grant, transfer and deliver (or will cause to be sold, assigned, granted, transferred or delivered) to the Buyer or any permitted successor or assign of the Buyer, and the Buyer or any permitted successor or assign of the Buyer will purchase and accept from the Company as of the Effective Date, free and clear of all Encumbrances (except as may otherwise be provided for herein), all of the Company’s right, title and interest in and those assets owned and used by the Company in the Business as described herein (collectively, the “Assets”). The Assets shall include the following:

(a) all inventory, a list of which is attached hereto as Schedule 1.1(a) (the “Inventory”);

(b) all tangible personal property, including that listed on Schedule 1.1(b);

(c) all fixed assets including, furniture, equipment, computer hardware and assignable software and similar types of equipment, including those listed on Schedule 1.1(c);

(d) collectible accounts receivable in the amount of $25,000;

(e) the Company’s Contracts listed on Schedule 1.1(e), the “Assumed Contracts”);

(f) to the extent assignable, all permits and licenses currently held by the Company in connection with the Assets or the Company and used in the Business as listed on Schedule 1.1(f);

(g) to the extent assignable, all Intellectual Property that is owned, used or licensed by the Company and in each case is material to, necessary for or used in the conduct of the Business as conducted or currently proposed to be conducted as listed on Schedule 1.1(g);

(h) all claims of the Company against third parties relating to the Assets, whether known or unknown, contingent or noncontingent, including all such claims listed in Schedule 1.1(h);

(i) to the extent assignable, the Company’s right to the Leased Premises;

(j) all rights of the Company’s claims for refunds and rights to offset in respect thereof, relating to the Assets;

(k) all of the Company’s information and data related to the Assets, including, without limitation, all materials and files, sales and marketing materials, patient files, lists of clients and potential clients, lists of suppliers and potential suppliers, and warranties and warranty information, subject to the confidentiality requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and applicable state law related to patient files, records or protected information;

(l) all books and records relating to the Assets or the Business, employee, consultant and other personnel records and executed copies of the Assumed Contracts (Seller shall retain or continue to have access to books and records necessary to prepare its tax returns);

(m) the Company’s right to the name “Hearing Associates of Pensacola,” and variations of the foregoing;

(n) to the extent assignable, all of the Company’s telephone and facsimile numbers, domain names and Internet addresses, including without limitation, those items listed on Schedule 1.1(n); and

(o) all other assets not referred to above that are listed or reflected on the Financial Statements and not identified as Excluded Assets.

1.2 Excluded Assets. Notwithstanding the foregoing, the assets, properties, rights and interests of the Company listed on Schedule 1.2 attached hereto, shall be retained by the Company (the “Excluded Assets”).

1.3 Assumed Liabilities. Except as expressly set forth in this Section 1.3, the Buyer assumes no Liabilities of the Company, whether such Liabilities are or may be direct or indirect, absolute or contingent, or relating to the Business. On the terms and subject to the conditions hereof on the Effective Date, Buyer shall assume and agree to pay, perform and discharge, as and when due, the following (all of which are referred to collectively as “Assumed Liabilities”).

(a) Lease obligations for the Leased Premises;

(b) Lease obligations for a photocopy machine;

(c) All obligations, responsibilities and Liabilities relating to or arising out of or incurred in connection with performance after the Effective Date of the Assumed Contracts, excluding Liabilities attributable to any failure by the Company to comply with the terms thereof;

(d) Any other Liabilities as set forth on Schedule 1.3(d); provided that the Buyer will not assume and will not be liable for, and the Company will retain and will remain solely liable for and obligated to discharge, all of the debts, obligations, and other Liabilities of any nature whatsoever arising from such Liabilities prior to the Effective Date;

(e) Seller’s obligations to Seller’s employees for “paid time off” accrued but unused as of the Effective Date, but only to the extent such paid time off is identified with respect to particular employees and set forth on Schedule 1.3(e); and

(f) Seller’s obligation to provide services (but not parts or materials) for office visits during the initial warranty period of manufacturers’ warranties for hearing aids sold by Seller prior to the Effective Date.

Except as set forth in (a), (b), (c), (d), (e), and (f) above, the Buyer will not assume and will not be liable for, and the Company will retain and will remain solely liable for and obligated to discharge, all of the debts, Contracts, and other Liabilities of any nature whatsoever of the Company or relating to (i) the ownership or operation of the Company at any time, (ii) the ownership or operation of the Assets, prior to the Effective Date, and (iii) the Assumed Contracts, prior to the Effective Date, whether known or unknown, accrued or not accrued, fixed or contingent (collectively, the “Excluded Liabilities”).

1.4 Purchase Price, Terms of Payment, and Closing Deliveries.

(a) The purchase price for the Assets will be paid by the Buyer by delivery to the Company of one million four hundred thousand dollars ($1,400,000) (the “Purchase Price”) in accordance with the following payment schedule:

(i) Seven hundred thousand dollars ($700,000) will be paid at the Effective Date in immediately available funds; and

(ii) the remaining $700,000 will be paid to the Company in two equal payments of $350,000 each to be paid on the first and second anniversaries of the Effective Date. The obligation to make these payments will be evidenced by the Promissory Note, which has been delivered concurrently with the execution of this Agreement. All payments due under the Promissory Note are subordinated to all of the Buyer’s loans and other obligations to Silicon Valley Bank (“Bank”) existing now or later. Neither this paragraph nor the payment terms of the Promissory Note may be amended or modified without the prior written consent of the Bank.

(b) The Seller will deliver the Xxxx of Sale concurrently with the execution of this Agreement.

(c) The Buyer and the Shareholders will execute the Employment Agreement concurrently with the execution of this Agreement

(d) The Buyer will deliver the Security Agreement concurrently with the execution of this Agreement.

(e) Sonic Innovations will deliver the Guaranty concurrently with the execution of this Agreement.

1.5 Allocation. The Purchase Price will be allocated as mutually agreed by the Company and by the Buyer among the Assets for purposes of complying with the requirements of Section 1060 of the Code and the regulations thereunder (and any similar provision of state, local or foreign law, as appropriate). The Buyer and the Company shall report, act and file Tax Returns (including, but not limited to, Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such allocation of the Purchase Price. If any Tax authority challenges such allocation, the party receiving notice of such challenge will give the other party prompt written notice thereof and the parties will cooperate in order to preserve the effectiveness of such allocation. The Company, timely and properly, shall prepare, execute, file and deliver all such documents, forms and other information as the Buyer may reasonably request to prepare such allocation. Any required appraisals or valuations will be paid for by the Buyer. Neither the Buyer nor any Seller shall take any position (whether in audits, Tax Returns or otherwise), which is inconsistent with such allocation unless required to do so by applicable law. Notwithstanding anything contained herein to the contrary, the Buyer and the Seller agree that in the event the allocation of the Purchase Price to the covenant not to compete set forth in Section 5.7 exceeds five (5%) of the Purchase Price or $70,000 (the “Allocation Cap”), the Buyer will pay to the Seller an additional amount equal to twenty percent (20%) of the amount the allocation exceeds the Allocation Cap (the “Allocation Payment”). The Buyer will also pay the Seller an additional amount equal to fifteen percent (15%) of the Allocation Payment. Such payments will be made within fifteen (15) days of the date the allocation is mutually agreed upon by the Buyer and the Seller.

1.6 No Appraisal Rights. No shareholder of the Company has exercised, or notified the Company of his, her or its intent to exercise, any dissenter’s rights pursuant to applicable law, including the right to receive payment in connection with the sale of all or substantially all of the Company’s Assets.

ARTICLE II.

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS

Each of the Company and Shareholders, jointly and severally, represents and warrants for the benefit of the Buyer as follows:

2.1 Organization and Good Standing; Ownership.

(a) The Company is a professional association duly organized, validly existing, and in good standing under the laws of the State of Florida and has (a) the corporate power to carry on the Business as it is now being conducted and (b) all licenses, permits and other authorizations necessary to own the Assets. The Company is not registered as a foreign corporation in any jurisdiction. The Company has no subsidiaries.

(b) The authorized capital stock of the Company consists of 100 shares of Common Stock, with $1.00 par value. 100 shares of Common Stock are issued and outstanding. Schedule 2.1(b) sets forth a complete and accurate list of the shareholders and

each shareholder’s ownership interest in the Company as of the Effective Date. These shareholders are the only shareholders of the Company and will be, as of the Effective Date, the record and beneficial owners and holders of the shares owned by each of them as set forth in the Schedule. Each shareholder has the exclusive right to vote his or her shares of capital stock of the Company. There are no Contracts relating to the issuance, sale or transfer of any capital stock or other securities (including any options, warrants, convertible securities or other right to purchase or acquire capital stock) of the Company. None of the capital stock of the Company was issued in violation of the Securities Act of 1933, as amended, or any other Legal Requirement.

2.2 Tax Matters. The Company has timely filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects and were prepared in substantial compliance with all applicable laws and regulations. All Taxes owed by the Company (whether or not shown or required to be shown on any Tax Return) have been paid. The Company is not currently the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where the Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Liens on any of the assets of the Company that arose in connection with any failure (or alleged failure) to pay any Tax. No Shareholder or director or officer (or employee responsible for Tax matters) of the Company expects any authority to assess any additional Taxes for any period for which Tax Returns have been filed. There are no pending or Threatened Proceedings concerning the Company’s Liability with respect to any Taxes related to the Business and there are no outstanding waivers or extensions of statutes of limitations with respect to the assessment of Taxes.

2.3 Legal Proceedings, Etc. Except as set forth in Schedule 2.3, there is no litigation, Proceeding, or governmental investigation pending or, to the best of the Company’s and the Shareholders’ Knowledge, Threatened relating to any of the Assets or the Business, or the transactions contemplated by this Agreement. The Company is not a party to or subject to the provisions of any judicial decree or judgment or any Order of any Governmental Body relating to any of the Assets, the Business, or the transactions contemplated by this Agreement.

2.4 Intellectual Property.

(a) With respect to each item of Intellectual Property listed on Schedule 1.1(g),: (i) the Company either owns and possesses all right, title, and interest in and to, or has the right to use, the item, free and clear of any Encumbrance or other restriction; (ii) the item is not subject to any outstanding injunction, judgment, Order, decree, ruling, or charge; and (iii) no Proceeding is pending or, to the best of the Company’s and the Shareholders’ Knowledge, Threatened which challenges the legality, validity, enforceability, use, or ownership of the item.

(b) Each item of the Intellectual Property listed on Schedule 1.1(g) will be owned or available for use by the Buyer on identical terms and conditions immediately subsequent to the Effective Date without any action on the part of the Buyer and without the payment by the Buyer of any transfer or other fee resulting from this transaction. Except as set forth in attached Schedule 2.4(b), there are no licensing fees, royalties, honoraria or other payments payable by the Company or any successor in interest in the future to any Person by reason of the ownership, development, use, license, sale or disposition of the Intellectual

Property. The Company has taken all necessary action to maintain and protect each item of the Intellectual Property.

(c) The items set forth in Schedule 1.1(g) comprise all the Intellectual Property that is necessary for or used in the operation of the Business as conducted or currently proposed to be conducted.

(d) Schedule 2.4(d) sets forth a true and complete list of all Licenses and the Company has delivered to the Buyer true and complete copies of all the Licenses.

(e) Except as set forth in attached Schedule 2.4(e): (i) the Company is not, and as a result of the execution, delivery or performance of this Agreement or the consummation of the transaction contemplated hereby will not be, in material breach of any of the Licenses; (ii) to the best of the Company’s and the Shareholders’ Knowledge, no other party is in default under any of the Licenses; (iii) no event has occurred, or by virtue of the execution, delivery or performance of this Agreement or the consummation of the transaction contemplated hereby will occur, which with notice or lapse of time or both would constitute a material breach or permit termination, modification or acceleration under any of the Licenses; (iv) there are no restrictions (other than those which have been complied with or waived) on the direct or indirect transfer of any of the Licenses, or any interest therein, and no approval or consent of any Person is needed so that the interest of the Buyer in the Intellectual Property shall continue to be in full force and effect upon the consummation of the transaction contemplated hereby; (v) the Licenses are enforceable in accordance with their terms, subject as to enforcement of remedies to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting generally the enforcement of creditors’ rights and subject to a court’s discretionary authority with respect to the granting of a decree ordering specific performance or other equitable remedies; and (vi) the execution and delivery of this Agreement and/or the performance of the Company’s obligations hereunder will not cause the material diminution or termination of the Buyer’s rights to use or forfeiture of any Intellectual Property.

2.5 Material Contracts. Schedule 2.5 sets forth a list (separated by subsection) of all Company Contracts or other arrangements (oral or written) that are material to the Business as follows:

(a) all Contracts, (i) including outstanding proposals, for the sale of products or services by the Company involving expected sales or fees and/or having a delivery date expected to be after the Effective Date listing for each, the total contract value and expected delivery date, and (ii) each Contract, other than for the sale of products or services by the Company that involves payment by the Company of more than $2,500 or was not entered into in the Ordinary Course of Business;

(b) all distributor, broker, agency and dealer Contracts to which the Company is a party;

(d) all Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party;

(e) all Contracts under which the Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness with respect to the Business, or under which a security interest or Lien has been imposed (or may be imposed) on any of the Assets, whether tangible or intangible, to secure indebtedness;

(f) all Contracts that limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time, or to solicit any customer or client; and

(g) all other Contracts to which the Company is a party and (i) which are material to the Business, (ii) the termination or cancellation of which would have a material adverse effect on the Business or the Assets, or (iii) which are believed by the Company to be of a unique value even though not material to the Business

2.6 Assets.

(a) The Assets include all properties, tangible and intangible, currently used by the Company to conduct the Business, other than the Excluded Assets. The Assets are free and clear of any Encumbrances and the Company owns all right, title and interest and holds good, marketable and transferable title to, or a valid leasehold interest in, all of the Assets.

(b) To the Company’s and the Shareholders’ Knowledge, the Assets are in good operating condition and repair, and are adequate for the uses to which they are being put in connection with the Business, and none of the Assets is in need of maintenance or repair, except for ordinary and routine maintenance and repair.

(c) No attachments, execution Proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other Proceedings are pending or, to the best of the Company’s and the Shareholder’s Knowledge, Threatened against or relating to the Assets.

2.7 Environmental Matters. To the best of the Company’s and the Shareholders’ Knowledge, the Company is and at all times has been in compliance with all applicable laws and regulations relating to pollution prevention and protection of the environment. The Company has received no summons, citation, directive, notice, complaint, letter or other communication from any Governmental Body or third party, of any actual or potential violation or failure to comply with applicable laws and regulations relating to pollution prevention and protection of the environment or to undertake or bear the costs of any environmental liabilities with respect to the Real Property. To the best of the Company’s and the Shareholders’ Knowledge, there are no PCBs, asbestos, asbestos containing material, lead paint, radon or other hazardous substances present on or in the Real Property.

2.8 Compliance with Legal Requirements.

(a) Generally. The Company is (and has been since its incorporation) in compliance in all material respects with all Legal Requirements (antipollution, environmental, employment and safety, including under the Occupational Safety and Health Act of 1970), and since such date has received no such notice of any material non-compliance with any Legal Requirement.

(b) Permits. The Company has in good standing all necessary permits, authorizations, and licenses and other waivers and approvals necessary for operation of the Business and the Assets, each of which is listed on Schedule 1.1(f) (the assignment of such permits, authorizations, and licenses is subject to the restrictions set forth on Schedule 2.4(e)). The Company is (and since its incorporation has been) operating the Business in compliance in all material respects with each such permit, authorization or license and the Business is being conducted by the Company in compliance with all applicable Legal Requirements.

2.9 Contracts; No Defaults. Each of the Assumed Contracts is in full force and effect and is valid and enforceable in accordance with its terms. In addition, (i) the Company is in full compliance with all applicable terms and requirements of each Assumed Contract; (ii) to the best of the Company’s and the Shareholders’ Knowledge, each other Person that has or had any Liability under any Assumed Contract is in full compliance with all applicable terms and requirements of such Assumed Contract; (iii) the Company has not given to or received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Assumed Contract; and (iv) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Assumed Contract.

2.10 Customer Relationships. The Company is not in dispute with any current or former customers and no customer of the Company has notified the Company that it shall stop doing business with the Company.

2.11 Employee Benefits. Except as set forth in Section 1.3(e), the Buyer has and will have no Liability with respect to any Seller Plan or Seller Benefit Arrangement.

2.12 Non-Contravention; Consents. The transfer and sale of the Assets and the execution, delivery and/or performance by the Company of this Agreement do not and will not with the passage of time or the giving of notice or both: (i) violate, breach, conflict with, constitute a default or require any consent, notice or payment under, or permit a termination of, or create or impose any Encumbrance or restriction upon any Asset under (A) any term or provision of the Company’s Articles of Incorporation or Bylaws (each as amended); (B) the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any assignable authorization, permit or license that is related to the Assets or the Business; (C) any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Assumed Contract; (D) any loan document, assignable lease, assignable equipment lease or other Contract that is material to the Business to which the Company is a party or bound; (E) any assignable permit, judgment, decree or Order of any Governmental Body to which the Company is subject or bound; or (F) any Legal Requirement; (ii) create or impose any Encumbrance upon any Asset under any Legal Requirement; (iii) give any Governmental Body or other Person the right to challenge any of the transactions contemplated under the Agreement or to exercise any remedy or obtain any relief under any Legal Requirement or any Order to which the Company, or any of the Assets, may be subject; or (iv) cause the Buyer to become subject to, or to become liable for the payment of, any Tax, other than documentary taxes on the Promissory Note and sales taxes, if any, on the transfer of the Assets to the Buyer.

Except as set forth in Schedule 2.12, the Company is not required to give notice to or obtain any consent from any Person in connection with the execution and delivery of this Agreement, or the consummation or performance of any of the transactions contemplated hereunder or thereunder. Subject to fulfillment of any requirements imposed by the issuing Governmental Body as to any license, permit or authorization, the transfer and sale of the Assets to the Buyer contemplated herein will not violate or result in a breach of or constitute a default under any judgment, Order, decree, law, rule, regulation, or other restriction of any court, or Governmental Body to which the Company is subject.

2.13 Absence of Certain Changes and Events. Since January 1, 2006, the Company has conducted the Business only in the Ordinary Course of Business and there has not been any material adverse change in the Business or the Assets, and, to the best of the Company’s and the Shareholders’ Knowledge, no event has occurred or circumstance exists that may result in such a material adverse change.

2.14 Authorization. This Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against each of them in accordance with its terms. The Company has the absolute and unrestricted right, corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and such action has been duly authorized by the Company’s shareholders (if necessary) and board of directors.

2.15 Financial Statements and Undisclosed Liabilities.

(a) The Company has delivered to the Buyer true, complete and correct copies of the Company’s unaudited financial statements reflecting the financial results of the Company for the year ending December 31, 2006 and for the six months ending June 30, 2007 which are attached hereto as Schedule 2.15 (collectively, the “Financial Statements”). The Financial Statements accurately and completely present all of the cash flows, income, expenses, liabilities customarily shown on financial statements, operations, equity and assets of the Company with respect to the Assets and the Business at the respective dates thereof with no difference between such Financial Statements and the Company’s financial records as maintained.

(b) The Company has no Liabilities that are not fully reflected or provided for on the balance sheets included in the Financial Statements, except Liabilities incurred in the Ordinary Course of Business since January 1, 2006, none of which individually or in the aggregate has had or could reasonably be expected to have an adverse affect on the Business or the Assets.

2.16 Products, Services and Warranties. Schedule 2.16 sets forth a summary of all currently outstanding and effective written warranties and guaranties and ongoing indemnification obligations granted by the Company to any customer, client or contractor with respect to any Contract, and no written warranty, guaranty or indemnification obligation currently in effect has been given by the Company which is not listed on Schedule 2.16 or which differs therefrom in any respect. The Company is in compliance with all warranties, guaranties and indemnification obligations described and Schedule 2.16 sets forth a list of all warranty, guaranty or indemnification claims currently pending or, to the best of the Company’s and the Shareholders’ Knowledge, Threatened against the Company.

2.17 Insurance. Schedule 2.17 sets forth a list of all insurance policies covering the Assets or used or usable in the conduct of the Business. There is no claim by the Company pending under any of such policies as to which coverage has been questioned, denied or disputed by the underwriters of such policies. All premiums due and payable under all such policies have been paid and the Company is otherwise in material compliance with the terms of such policies. To the best of the Company’s and the Shareholders’ Knowledge, there is no Threatened termination of any such policies, other than as set forth on Schedule 2.17.

2.18 Employee Matters.

(a) Certain Information. Schedule 2.18(a) sets forth a list of all employees of the Company, including name, legal qualifications, if required, current compensation (wage, salary and/or commissions), accrued but unused vacation, sick leave or other paid time off (determined without regard to minimum hours or qualifying periods of employment or other qualifying criteria), any bonuses or other incentive compensation plans or arrangements in which such employees participate, employment date, current job title, and accrued but unpaid compensation (other than salary or wages earned in the Ordinary Course of Business).

(b) Compliance. Except as set forth in Schedule 2.18(b): (i) the Company is (and has been) in compliance in all material respects with all Legal Requirements respecting employment and employment practices; (ii) there are no charges, investigations, Proceedings or formal complaints of discrimination pending or, to the best of the Company’s and the Shareholders’ Knowledge, Threatened before any Governmental Body against the Company; (iii) there have been no governmental audits of the Company’s equal employment opportunity or wage and hour practices; (iv) there is no and has not been any unfair labor practice complaint, charge or other matter against or involving the Company pending or, to the Company’s Knowledge, Threatened, either (A) before any Governmental Body or (B) by any other Person that has not been completely and finally resolved.

2.19 Leased Premises. Schedule 2.19 identifies all leases or agreements to lease under which the Company leases any real property. The Company is exclusively entitled to all rights and benefits as lessee of the Leased Premises and the Company has not sublet, assigned, licensed, or otherwise conveyed any rights in the Leased Premises to any other Person. The Seller has previously delivered copies of all leases set forth on Schedule 2.19 to the Buyer. All rental and other payments and other obligations required to be paid and performed by the Company pursuant to such leases have been duly paid and performed. The Company is not in material default of any of its obligations under any of the leases and, to the best of the knowledge of the Company and the Shareholders, none of the landlords or other parties to such leases is in material default under such leases. The use by the Company of the Leased Premises is not in breach of any building, zoning or other statute, by-law, ordinance, regulation, covenant, restriction or official plan and the Company has adequate rights of ingress to and egress from the Leased Premises for the operation of the Business in the ordinary course. The Company has obtained the consent of the landlords of the Leased Premises for the Buyer to assume the obligations of the Company under the leases.

2.20 Accounts Receivable. The accounts receivable transferred to the Buyer as provided in Section 1.1(d) and limited to the first $25,000 of such accounts receivable are not subject to any dispute and are collectible in the ordinary course of business.

2.21 Brokers or Finders. Neither the Company nor any of its respective agents has incurred any Liability for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement.

2.22 Disclosure. No representation or warranty of any of the Company in this Agreement and no statement in the attached Schedules contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements herein or therein, in light of the circumstances in which they were made, not misleading.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES OF THE BUYER

The Buyer represents and warrants to the Company and the Shareholders as follows:

3.1 Corporate Standing. The Buyer is a Delaware corporation duly organized, validly existing, and in good standing under the laws of Delaware, with the corporate power to own its properties, carry on its business as now being conducted, and execute this Agreement to which it is a party.

3.2 Non-Contravention. The execution of this Agreement does not, and performance thereof will not, violate the provisions of the current Certificate of Incorporation or Bylaws of the Buyer, as amended.

3.3 Authorization. This Agreement and the consummation of the transactions contemplated herein have been duly and validly authorized by all necessary company action on the part of the Buyer, and this Agreement (upon execution and delivery as provided herein) will be binding upon and enforceable against the Buyer in accordance with its terms.

3.4 Brokers or Finders. The Buyer has not incurred any Liability for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement.

3.5 Corporate Standing - Guarantor. Sonic Innovations, Inc., is a Delaware corporation, duly organized, validly existing and in good standing under the laws of Delaware, with the corporate power to own its own properties, carry on its business as now being conducted and to execute the guaranty described in Section 1.4(e) of this Agreement.

3.6 Guarantor Affiliation. Sonic Innovations Inc. owns 100% of all outstanding aggregate voting rights of Buyer and 100% (by value) of all the issued and outstanding equity interests in Buyer.

3.7 Guarantor Authorization. The guaranty of Sonic Innovations, Inc., as described in Section 1.4(e), has been duly and validly authorized by all necessary action on the part of Sonic Innovations, Inc., and such guaranty (upon execution and delivery as provided herein) will be binding upon and enforceable against Sonic Innovations, Inc., in accordance with its terms.

ARTICLE IV.

TAX MATTERS

4.1 Tax and Assessment Allocations.

(a) All transfer, documentary, sales, use, stamp, registration and other such Taxes (not including income taxes), and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by the Agreement, regardless of the Person on whom such Taxes are imposed under applicable law, shall be paid by the Buyer when due. The Company will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges related to periods prior to the Effective Date. If required by applicable law, the Company and the Buyer will, and will cause their Affiliates to, join in the execution of any such Tax Returns and other documentation.

(b) All ad valorem Taxes shall be prorated as of the Effective Date.

4.2 Tax Cooperation. The Buyer and the Company will cooperate, as and to the extent reasonably requested by the other party, with each other following the Effective Date by providing information and assistance in connection with the preparation and filing of Tax Returns, or the conduct of any audits or administrative, judicial or similar Proceedings involving any Tax liability relating to the purchase and sale of the Assets. The Buyer and the Company will promptly deliver to each other a copy of any notice of proposed Tax assessment, audit or Proceeding received by either party that relates to any period for which the other party may be liable pursuant to the terms of this Agreement and (upon the other party’s request) any other records or information relevant to such assessment, audit or Proceeding on a mutually convenient basis. The Buyer and the Company agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 96-60 with respect to wage reporting.

ARTICLE V.

POST-EFFECTIVE COVENANTS

The parties to this Agreement agree as follows with respect to the period subsequent to the Effective Date.

5.1 Assistance in Proceedings. If and for so long as the Buyer is actively contesting, or defending against, any action, suit, Proceeding, hearing, investigation, charge, complaint, claim or demand in connection with (a) any transaction contemplated under this Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction involving the Company, the Business ( prior to the Effective Date) or the Assets, the Company will cooperate with the Buyer or its counsel in the contest or defense, make available its personnel, and provide such testimony and access to their books and records as will be reasonably necessary in connection with the contest or defense, all at the sole cost and expense of the Buyer (unless the Buyer is entitled to indemnification therefor under Article VI).

5.2 Customer and Other Business Relationships. The Company will cooperate with the Buyer in its efforts to continue and maintain for the benefit of the Buyer those business relationships of the Company existing prior to the Effective Date and relating to the

Business to be operated by the Buyer after the Effective Date. So long as the Buyer is not in default of any of its obligations under this Agreement, none of the Shareholders, the Company or any of the Company’s officers or directors, will take any action that would tend to diminish the value of the Assets after the Effective Date or that would interfere with the business of the Buyer to be engaged in after the Effective Date, including disparaging the name or business of the Buyer.

5.3 Forwarding of Payments. The parties acknowledge that, after the Effective Date, the Company and the Buyer may receive payments, invoices, and other items intended for the other. Each party promptly will forward, or cause to be forwarded, such items to the appropriate person.

5.4 Assignment of Contracts. The Company shall use its best efforts to obtain consents to the assignment of the Contracts listed on Schedule 1.1(e) to Buyer immediately following the Effective Date.

5.5 Retention of Records. To the extent that any records relating to the Assets are not delivered to the Buyer, the Company will retain, during the periods required by applicable Legal Requirements, any records required by any Governmental Body to be retained relating to Tax matters, and upon request of the Buyer will deliver any such records to the Buyer.

5.6 Name Change. The Company agrees that within 10 business days following the Effective Date, it will adopt and file an amendment to its Articles of Incorporation changing its corporate name to a name not using the terms “Hearing Associates of Pensacola,” whether alone or in combination with any word or term or variations of such word or terms. Following the Effective Date, the Company shall not do business under, or utilize a trademark or service xxxx consisting of or confusingly similar to, any of the foregoing names or terms.

5.7 Noncompetition. For the period beginning on the Effective Date and ending on the fifth (5th) anniversary of the Effective Date, neither the Company nor any of its Affiliates, whether individually or as a shareholder (except as a shareholder owning less than 1% or less of the outstanding capital stock of a publicly traded corporation), partner, member, director, officer, employee, consultant, creditor, or agent of any person, association, or other entity:

(a) Enter into, engage in, or promote or assist (financially or otherwise), directly or indirectly, any Person or business which engages in, or intends to be engaged in, a Competitive Business;

(b) Induce or encourage any client, employee, officer, director, agent, supplier, or independent contractor of the Buyer to terminate its relationship with the Buyer, or otherwise interfere or attempt to interfere in any way with the Buyer’s relationships with its clients, employees, officers, directors, agents, suppliers, independent contractors, or others; or

(c) Employ or engage any person who, at any time within the one year period immediately preceding such employment or engagement, was an employee, officer, director or agent of the Buyer or its Affiliates.

Notwithstanding anything contained in this Agreement or the Employment Agreements to the contrary, if Buyer defaults on the Promissory Note, the covenant contained in this Section 5.7 will not apply to the Shareholders.

5.8 Employees. The Buyer has identified certain key employees as set forth on Schedule 5.8 hereto (the “Key Employees”) that the Buyer will employ. The Company agrees that neither it will not hire the Key Employees or solicit them to change employment.

ARTICLE VI.

SURVIVAL AND INDEMNIFICATION

6.1 Survival of Representations and Warranties; Limitations. All representations, warranties and covenants of all parties hereto (collectively “Representations”) will survive the execution of this Agreement (even if the damaged Party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Effective Date) and continue in full force and effect thereafter for a period of thirty-six (36) months following the Effective Date. Unless a party notifies the other party of a claim for breach of a Representation by written notice delivered to the other party before the end of such thirty-six (36) month period, the representations, warranties and covenants contained in this Agreement shall expire at the end of such thirty-six (36) month period. To preserve any claim for a breach of a Representation, the party claiming breach must notify the other party of such claim in writing prior to the expiration of any applicable statute of limitations. Such written notice will specify in reasonable detail the facts giving rise to the claim and will contain a good faith estimate of the maximum amount of the claim, which estimate will not be binding or determinative.

6.2 Indemnification.

(a) The Company and the Shareholders, jointly and severally, will defend, indemnify, and hold harmless the Buyer and its Affiliates, successors and assigns, from and against any Liabilities, claims, causes of action, losses, costs, and expenses (including costs of investigation and reasonable attorneys’ fees) arising out of or relating to:

(i) the ownership of the Assets or the operation of the Business prior to and including the Effective Date, except as otherwise specifically provided in this Agreement;

(ii) breach of any Representation of any of the Company or the Shareholders contained herein or other certificate, document, writing or instrument delivered by the Company pursuant to this Agreement;

(iii) claims of any Company employees relating to their employment by the Company or in connection with the transactions contemplated hereby, including but not limited to any termination of such employees’ employment, and any benefits, COBRA or similar state benefit continuation coverage, relating thereto, by the Company;

(iv) any Excluded Liabilities;

(v) any Excluded Assets; and

(vi) any Taxes arising from the Business, the Assets or in connection with the transactions contemplated by this Agreement incurred on or before the Effective Date.

Notwithstanding anything in this Section 6.2(a) to the contrary, the indemnification obligations of the Company and the Shareholders shall not exceed $350,000 in the aggregate. In addition, if the Buyer receives insurance proceeds from any claims or damage for which the Company or the Shareholders have indemnified the Buyer, the Buyer will reimburse the Company or the Shareholders for the amount indemnified up to the amount of the insurance proceeds.

(b) The Buyer will defend, indemnify, and hold harmless the Company and its Affiliates and assigns from and against any Liabilities, claims, causes of action, losses, costs, and expenses (including costs of investigation and reasonable attorneys’ fees) arising out of or relating to:

(i) breach of any Representation of the Buyer contained herein or other certificate, document, writing or instrument delivered by the Buyer pursuant to this Agreement;

(ii) the ownership of the Assets after the Effective Date, except as otherwise specifically provided in this Agreement;

(iii) breach of any provision of HIPAA; and

(iv) the Assumed Liabilities.

6.3 Procedure.

(a) Promptly upon receipt of information indicating that a right to indemnification may arise, whether the right to indemnification results from claims of a third-party, from losses, costs or expenses of a party, or otherwise (collectively, a “Claim”), the party owed indemnification (“Indemnitee”) will notify the party owing indemnification (“Indemnitor”) of the circumstances of the Claim and will keep the Indemnitor apprised of any material changes in the circumstances of the Claim. The delay or failure to give such notice will not relieve the Indemnitor of any Liability to the Indemnitee except to the extent that the failure to provide notice results in the failure of actual notice and Indemnitor is materially damaged as a result of such failure.

(b) The Indemnitor will be entitled to participate in, and to assume fully, the defense of any Claim with counsel approved by the Indemnitee. The Indemnitee will give the Indemnitor reasonable information and assistance, at the Indemnitor’s expense, in connection with the defense of such Claim. If timely notice of an action is given to the Indemnitor and the Indemnitor does not give notice to the Indemnitee within 15 days of its intent to assume the defense, the Indemnitor will be bound by any determination made in such proceeding or any compromise or settlement thereof effected by the Indemnitee.

(c) The Indemnitee will have the right to employ separate counsel and to participate in the defense of such Claim, but the fees and expenses of such counsel will be at the expense of the Indemnitee unless: (i) the employment of counsel by the Indemnitee has been authorized by the Indemnitor; (ii) the Indemnitee has been advised by its counsel in writing that there is a conflict of interest between the Indemnitor and the Indemnitee in the conduct of the defense of the Claim (in which case the Indemnitor will not have the right to direct the defense of the action on behalf of the Indemnitee); (iii) the Indemnitor has not in fact employed counsel to assume the defense of the Claim within a reasonable time following

receipt of the notice given pursuant to this Section; or (iv) Indemnitee determines in good faith that there is a reasonable probability that the Claim may materially and adversely affect it or its Affiliates other than as a result of monetary damages; in each of which cases the fees and expenses of such counsel will be at the expense of the Indemnitor.

(d) Subject to the terms of Section 6.3(c), after notice to the Indemnitee of the assumption of defense by the Indemnitor, the Indemnitor will have no Liability to the Indemnitee for any fees or costs subsequently incurred by Indemnitee in such defense (except for fees and costs incurred in responding to requests for assistance from the Indemnitor). No compromise or settlement of a claim binding on the Indemnitee will be effected by the Indemnitor without the consent of the Indemnitee, which consent may be given or withheld in Indemnitee’s sole discretion.

6.4 Right of Offset. The Buyer is entitled to offset indemnification Claims under this Article VI and any other unpaid Claims under this Agreement, against any amount not paid from the payments owing pursuant to Section 1.4 of this Agreement.

ARTICLE VII.

ADMINISTRATIVE PROVISIONS

7.1 Further Assurances and Actions. At any time, and from time to time, after the Effective Date, each party will execute such additional instruments and take such action as may be reasonably requested by any other party to confirm or to perfect title to any property transferred hereunder or otherwise to carry out the intent and purposes of this Agreement.

7.2 Waivers and Amendments. Any failure on the part of either party hereto to comply with any of its obligations, agreements, or conditions hereunder may be waived in writing by the party to whom such compliance is owed. No waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, will be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No amendment of any provision of this Agreement will be valid unless the same will be in writing and signed by the parties hereto.

7.3 Notices. All notices and other communications hereunder will be in writing and will be deemed to have been given on the date of delivery if sent by prepaid United States Postal Service first-class registered or certified mail, return receipt requested, or by United States Postal Service Express Mail or by prepaid Federal Express, Airborne, or similar courier service, or if delivered in person, in each case to the appropriate addresses set forth below (or to such other addresses as a party may designate by notice to the other parties in accordance with this Section 7.3):


if to the Buyer:		if to the Company:

HEARINGLife USA, Inc.		Hearing Associates of Pensacola, P.A.
0000 Xxxx Xxxxxxxxxx Xxxxxxx		0000 Xxxx Xxxxxx Xxxx
Xxxxx 000		Xxxx Xxxxxx, Xxxxxxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000		Attn: Xxxxx Xxxxxxxx Xxxxxx
Attn: Xxxxx Xxxxxxx, Vice President and General Counsel
		with a copy to:
with a copy to, that shall not be deemed notice to:
		Xxxxx X. Xxxxxxxx
Xxxxxxx & Xxxx LLP		15861 CR 95
00 Xxxx Xxxxx Xxxxxx		Xxxxxxx, Xxxxxxx 00000
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000		with a copy to, that shall not be deemed notice to:
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: 801-799-5700		Clark, Partington, Xxxx, Xxxxx, Bond & Xxxxxxxxxx
E-mail: xxxxxxxx@xxxxxxxxxxx.xxx		Xxxxx 000, Xxx Xxxxxxxxx Xxxxx
		000 Xxxx Xxxxxx Xxxxxx
		Xxxxxxxxx, Xxxxxxx 00000
		Attn: Xxxxx Xxxxxxxxxx
		Facsimile: 000-000-0000
		E-mail: xxxxxxxxxxx@xxxxxx.xxx

7.4 Headings. The Section and Subsection headings in this Agreement are inserted for convenience only and are not to affect in any way the meaning or interpretation of this Agreement.

7.5 Assignment. This Agreement and all other instruments, certificates and contracts delivered hereunder are to inure to the benefit of, and be binding upon, the parties hereto and their successors and permitted assigns; provided, however, that any assignment by any party of its rights under this Agreement without the written consent of the other party will be void. Notwithstanding the foregoing, the Buyer may assign its rights and obligations hereunder and thereunder to an Affiliate without the consent of the Company but such assignment will not relieve the Buyer or Sonic Innovations, Inc. of any of their obligations under this Agreement, the Promissory Note or the Guaranty.

7.6 Exhibit and Schedule References. All references in this Agreement to an “Exhibit” or a “Schedule” are, unless the context clearly indicates otherwise, to the Exhibits and Schedules attached hereto, each of which is incorporated herein by such reference.

7.7 Article and Section References. All references in this Agreement to an “Article” or a “Section” are to the Articles and Sections, respectively, of this Agreement unless the context clearly indicates otherwise.

7.8 Agreement Not Construed Against Drafter. The parties and their respective counsel have reviewed this Agreement in its entirety and the parties acknowledge that each has had a full opportunity to negotiate the terms of this Agreement. Therefore, the parties waive

any and all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the drafter of the Agreement, and agree and affirm that the Agreement and all provisions thereof will in all cases be construed as a whole, according to the fair meaning of the language used.

7.9 Due Diligence. The Buyer’s due diligence is not intended to constitute a waiver of any representation or warranty of the Company contained in this Agreement. The fact that the Buyer did become, or could have become, aware prior to the execution of this Agreement of any breach of any representation or warranty set forth in Article II or elsewhere under the Agreement during the course of the Buyer’s due diligence reviews or otherwise will in no way affect the right of the Buyer to indemnification hereunder with respect to such breach.

7.10 Counterparts; Facsimile. This Agreement may be executed simultaneously in two counterparts, each of which will be deemed an original, but all of which together are to constitute one and the same instrument. Signature pages to this Agreement may be delivered by facsimile.

7.11 No Third-Party Beneficiaries. No provision in this Agreement will create any third-party beneficiary or other right in any Person (including any related Person, beneficiary or dependent thereof) for any reason, including in respect of continued, resumed or new employment with the Buyer, or in respect of any benefits that may be provided, directly or indirectly, under any plan or arrangement maintained by the Company or the Buyer.

7.12 Expenses. Except as otherwise described herein, each of the parties will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.

7.13 Entire Agreement. This Agreement and the documents referenced herein, including the Schedules and Exhibits hereto, constitute the entire agreement among the parties and supersedes and cancels any other agreement, representation, or communication, whether oral or written, between the parties hereto relating to the transactions contemplated herein or the subject matter hereof.

7.14 Irreparable Injury. Each of the Company and the Shareholders acknowledge that the covenants contained in this Agreement are of a special and unique character, which gives them a peculiar value to the Buyer, the loss of which may not be reasonably or adequately compensated for by damages in an action at law, and that a material breach or threatened breach by the Company or the Shareholders of any of the covenants contained in this Agreement will cause the Buyer irreparable injury. The Company and the Shareholders therefore agree that the Buyer shall be entitled, in addition to any other right or remedy, to a temporary restraining order, preliminary and permanent injunctions and any other appropriate equitable remedy that prevents the Company or the Shareholders from breaching this Agreement, without the necessity of proving the inadequacy of monetary damages or the posting of any bond or security, enjoining or restraining the Company from any such violation or threatened violation.

7.15 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. The parties hereto irrevocably submit to the nonexclusive jurisdiction of any

Xxxxxxx xxxxx xxxxx xxx/xx xxx Xxxxxx Xxxxxx of America court sitting in Florida in any suit, action or proceeding arising out of or relating to this Agreement. The parties hereto irrevocably waive, to the fullest extent permitted by law, any objection which a party may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court, and the parties further irrevocably waive any claim that such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

7.16 Attorney’s Fees. Should any party employ an attorney for the purpose of interpreting or enforcing this Agreement, or any document or instrument related to and/or executed pursuant to this Agreement, in connection with any arbitration or legal proceeding whatsoever, the party prevailing in such claim, action or proceeding, as the case may be, shall be entitled to recover the actual sum for attorney’s fees, expert and consulting fees, and all other costs. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of the action or suit including, without limitation, actual attorney’s fees and accounting, expert and consultant fees and all other costs and expenses (including, but not limited to, service of process, filing fees, court and court reporter costs, investigative costs, expert witness fees, and the cost of any bonds, whether taxable or not) incurred in connection with (a) enforcing, perfecting and executing such judgment, (b) post-judgment motions, (c) contempt proceedings, (d) garnishment, levy, and debtor and third-party examinations, (e) discovery, and (f) bankruptcy litigation issued in that proceeding.

7.17 Severability. If for any reason any term or provision of this Agreement is held to be invalid or unenforceable, all other valid terms and provisions hereof shall remain in full force and effect, and all of the terms and provisions of this Agreement shall be deemed to be severable in nature. If for any reason any term or provision containing a restriction set forth herein is held to cover an area or to be for a length of time which is unreasonable, or in any other way is construed to be too broad or to any extent invalid, such term or provision shall not be determined to be null, void and of no effect, but to the extent the same is or would be valid or enforceable under applicable law, any court of competent jurisdiction shall construe and interpret or reform this Agreement to provide for a restriction having the maximum enforceable area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under applicable law.

7.18 Pre-Closing Accounts Receivable. Buyer is purchasing Company’s accounts receivable only to the extent of the first $25,000 collected on such accounts receivable after the Effective Date. Company’s accounts receivable as of the Effective Date are identified on Schedule 7.18 and are hereinafter referred to as the “Pre-Closing Receivable”). Buyer shall collect the Pre-Closing Receivables and retain the first $25,000 of collections on the Pre-Closing Receivable received after the Effective Date (hereinafter “the First $25,000 Collected”). Unless the Company exercises the option (described herein) to assume collection of the Pre-Closing Receivables, the Buyer shall continue to collect the Pre-Closing Receivables in excess of the First $25,000 Collected and shall deliver to Company all collections on the Pre-Closing Receivables in excess of the First $25,000 Collected. At any time after the Buyer has received the First $25,000 Collected, Company may, at Company’s option, begin collecting the balance of the Pre-Closing Receivables. In any event, after Buyer receives the First $25,000 in Collections, Buyer shall deliver to Company all amounts received by Buyer on the Pre-Closing Receivables.

Agreed to and executed as of the Effective Date above.


THE BUYER:

HEARINGLIFE USA, INC.

By:		/s/ Xxxxx Xxxxxxx
		Xxxxx Xxxxxxx, Vice-President

THE COMPANY:

HEARING ASSOCIATES OF PENSACOLA, P.A.

By:		/s/ Xxxxx Xxxxxxxx Xxxxxx
		Xxxxx Xxxxxxxx Xxxxxx, PhD, CCCA, President

/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx

/s/ Xxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx Xxxxxx, PhD, CCCA

EXHIBIT A

TO THE

ASSET PURCHASE AGREEMENT

Xxxx of Sale and Assignment

See Attached

EXHIBIT B

TO THE

ASSET PURCHASE AGREEMENT

Employment Agreement

See Attached

EXHIBIT C

TO THE

ASSET PURCHASE AGREEMENT

Promissory Note

See Attached

EXHIBIT D

TO THE

ASSET PURCHASE AGREEMENT

Security Agreement

See Attached

EXHIBIT E

TO THE

ASSET PURCHASE AGREEMENT

Guaranty

See Attached

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ASSET PURCHASE AGREEMENT BY AND AMONG HEARINGLife USA, INC., AS BUYER AND HEARING ASSOCIATES OF PENSACOLA, P.A. AS SELLER AND STEVE R. CHARLTON AND CAROL WHITCOMB POWELL, PHD, CCCA Effective as of October 5, 2007

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