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SHAREHOLDERS AGREEMENT
BETWEEN
TLC THE LASER CENTER INC.
AND
A.R.M. GROUP INC.
AND
1134445 ONTARIO LIMITED
AND
VISION CORPORATION
MADE AS OF
DECEMBER 12, 1995
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SHAREHOLDERS AGREEMENT
THIS AGREEMENT made as of December 12, 1995;
B E T W E E N:
TLC The Laser Center Inc., a corporation incorporated under the
laws of the Province of Ontario
(hereinafter referred to as "TLC")
OF THE FIRST PART,
- and -
A.R.M. Group Inc., a corporation incorporated under the laws of
the Province of Ontario
(hereinafter referred to as "ARM")
OF THE SECOND PART,
- and -
1134445 Ontario Limited, a corporation incorporated under the
laws of the Province of Ontario
(hereinafter referred to as "Ontario")
OF THE THIRD PART,
- and -
Vision Corporation, a corporation incorporated under the laws of
the Province of Ontario
(hereinafter referred to as the "Corporation")
OF THE FOURTH PART.
WHEREAS the authorized capital of the Corporation consists of an unlimited
number of common shares, of which 100 are issued and outstanding;
AND WHEREAS at the date hereof all of the issued shares of the Corporation
are beneficially owned by TLC, ARM, and Ontario as follows:
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SHAREHOLDERS COMMON SHARES
------------ -------------
TLC 50
ARM 39.9
ONTARIO 10.1
AND WHEREAS the Shareholders and the Corporation have agreed to enter into
this Agreement as being in their respective best interests and for the purpose
of providing for the operation of the Corporation;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the mutual covenants and agreements herein contained the parties
hereto agree as follows:
ARTICLE ONE - INTERPRETATION
1.1 Definitions
In this Agreement, unless something in the subject matter or context is
inconsistent therewith:
(a) "Accountant" means the auditor or accountant, as the case may be, of
the Corporation appointed from time to time;
(b) "Agreement" means this agreement and all schedules attached hereto
and all amendments made hereto and thereto by written agreement
between the Shareholders and the Corporation;
(c) "Business" means the development and maintenance of a computer
software network for the eye care industry;
(d) "Business Corporations Act" means the Business Corporations Act
(Ontario), as now enacted or as the same may from time to time be
amended, re-enacted or replaced;
(e) Business Day" means a day other than a Saturday, Sunday or statutory
holiday in Ontario;
(f) "Communication" has the meaning set out in Section 5.9;
(g) "Notice" has the meaning set out in Section 3.4(1);
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(h) "Offered Shares" has the respective meanings set out in Sections
3.4(1), 3.5(1) and 3.7(3).
(i) "Offeree" and "Offerees" have the respective meanings set out in
Sections 3.4(1), 3.5(1) and 3.7(3);
(j) "Offeror" has the respective meanings set out in Sections 3.4(1),
3.5(1) and 3.7(3):
(k) "Permitted Transferee" has the meaning set out in Section 3.7(1);
(l) "Shares" means the shams of the Corporation that the Shareholders at
the date hereof or hereafter may beneficially own; and
(m) "Shareholders" means TLC, ARM and Ontario, together with such other
persons as may become parties to this Agreement, collectively and
"Shareholder" means any one of such persons individually.
1.2 Sections and Headings
The division of this Agreement into Articles and Sections and the
insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, Section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto. Unless
something in the subject matter or context is inconsistent therewith, references
herein to Articles and Sections are to Articles and Sections of this Agreement.
1.3 Number
Words importing the singular number only shall include the plural and vice
versa, words importing the masculine gender shall include the feminine and
neuter genders and vice versa and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations and vice versa.
1.4 Accounting Principles
Wherever in this Agreement reference is made to "generally accepted
accounting principles", such reference shall be deemed to be the generally
accepted accounting principles from time to time approved by the Canadian
Institute of Chartered Accountants, or any successor institute, applicable as at
the date on which such calculation is made or required to be made in accordance
with generally accepted accounting principles.
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1.5 Not A Unanimous Shareholder Agreement
This Agreement is not a unanimous shareholder agreement within the
provisions of Section 108 of the Business Corporations Act (Ontario).
ARTICLE TWO - MANAGEMENT
2.1 Carrying our of the Agreement
The Shareholders shall at all times carry out and cause the Corporation to
carry out the provisions of this Agreement. The parties agree that the sole
purpose of the Corporation is the Business and the Shareholders, Officers and
Directors are free to engage in other computer software and computer network
activities which are not to be considered competitive with, or opportunities
that should be conducted by, or first offered to, the Corporation, even if there
is an overlap in such activities.
2.2 Idem
Each of Elias Vamvakas ("Vamvakas"), Stephen M. Caslick ("Caslick") and
Ronald J. Kelly ("Kelly"), so long as they are directors of the Corporation and
to the extent that they are permitted by law to bind themselves to do so, will
act and vote as directors in order that the purpose, intent and provisions of
this Agreement shall be carried out.
2.3 Idem
The Corporation confirms its knowledge of this Agreement and will carry
out and be bound by the provisions of this Agreement to the full extent that it
has the capacity and power at law to do so.
2.4 Directors
The board of directors of the Corporation shall consist of three (3)
directors and Vamvakas, Caslick and Kelly shall be the directors of the
Corporation unless, prior to the election or appointment of any other person as
a director of the Corporation, all of the Shareholders have consented in writing
to such person being elected or appointed and a copy of such consent has been
filed with the Corporation.
2.5 Accountant
Orenstein & Partners shall be appointed the accountant of the Corporation
unless, prior to the appointment of any other person as accountant of the
Corporation, all of the Shareholders
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have consented in writing to such person being appointed and a copy of such
consent has been filed with the Corporation.
2.6 Idem
The Shareholders shall in each financial year of the Corporation consent
to exempt the Corporation from the requirement to appoint an auditor of the
Corporation pursuant to the provisions of the Business Corporations Act
(Ontario).
2.7 Approval of Matters
None of the following actions:
(a) any change in the articles or by-laws of the Corporation;
(b) any change in the authorized or issued capital of the Corporation;
(c) the entering into of any agreement or the making of any offer or the
granting of any right capable of becoming an agreement to allot or
issue any shares of the Corporation;
(d) any action which may lead to or result in a material change in the
nature of the business of the Corporation;
(e) the entering into of any agreement other than in the ordinary course
of the Corporation's business;
(f) the borrowing of any money, the giving of any security or the making
or incurring of any single capital expenditure in excess of
$5,000.00 or any capital expenditures which, in the aggregate, are
in excess of $10,000.00 in any financial year of the Corporation;
(g) the taking of any steps to wind-up or terminate the corporate
existence of the Corporation;
(h) the sale, lease, exchange or disposition of the entire undertaking
or property or assets of the Corporation or any substantial part
thereof;
(i) the making of, directly or indirectly, loans or advances to, or the
giving of security for or the guaranteeing of the debts of, any
person;
(j) the declaration or payment of any dividend;
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(k) the taking, holding, subscribing for or agreeing to purchase or
acquire shares in the capital of any body corporate;
(l) the entering into of a partnership or of any arrangement for the
sharing of profits, union of interests, joint venture or reciprocal
concession with any person; and
(m) the entering into of an amalgamation, merger or consolidation with
any other body corporate;
shall be taken by the Corporation unless:
(A) in the case of an action that by law requires the approval of
the directors only:
(1) at any meeting of directors:
(i) each of Vamvakas and Caslick give their approval
to such action by resolution; or
(2) all of the directors consent to such action by an
instrument or instruments in writing; and
(B) in the case of an action that by law requires the approval of
the shareholders:
(1) at any meeting of shareholders duly called for the
purpose of considering the proposed action, at least 66
2/3% of the votes are cast in favour of the action; or
(2) all of the Shareholders consent to such action by an
instrument or instruments in writing.
ARTICLE THREE - DEALING WITH SHARES
3.1 No Transfer of Shares
Except as expressly provided for in this Article Three, the Shareholders
shall not sell, transfer, assign, pledge, charge, mortgage or in any other way
dispose of or encumber their Shares or their rights under this Agreement without
first complying with all of the provisions of this Agreement unless, prior to
the disposition or encumbrance of their Shares, all of the Shareholders have
consented in writing to such disposition or encumbrance.
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3.2 Endorsement on Certificates
Share certificates of the Corporation shall bear the following language
either as an endorsement or on the face thereof:
"The shares represented by this certificate are subject to all the terms
and conditions of an agreement made as of December 12, 1995, a copy of
which is on file at the registered office of the Corporation."
3.3 Issue of Additional Shares
If any additional shares of the Corporation are to be issued from
treasury, the Corporation shall first offer such shares to the Shareholders by
notice given to them of the Corporation's intention to issue additional shares
and the number and class thereof to be so issued. The Shareholders shall have
the right to purchase the shares so offered pro rata based upon the number of
Shares beneficially owned by the Shareholders at the date notice is given of
such offer. The Shareholders shall have 20 Business Days from the date such
notice is given in which to take up and pay for all or any of the shares so
offered. The shares that have not been taken up and paid for within the said 20
Business Days shall be offered again by the Corporation by notice given to those
Shareholders who elected to take up and pay for all of the shares initially
offered to them, and each of such Shareholders shall have the right to purchase
the shares so offered pro rata based upon the number of Shares beneficially
owned by the Shareholders at the date notice is given of such subsequent offer.
Such Shareholders shall have 20 Business Days from the date such subsequent
notice is given in which to take up and pay for all or any of the shares so
offered, and so on from time to time until all the shares have been taken up or
until all of the Shareholders have refused to take up any more, in which latter
event the shares not so taken up may be issued to such persons as the directors
in their discretion determine, provided that such persons agree to be bound by
this Agreement and to become parties hereto.
3.4 Sale of Shares
(1) Any Shareholder (hereinafter in this Section 3.4 referred to as the
"Offeror") who desires to sell all or any of his Shares shall give notice of
such proposed sale (hereinafter in this Section 3.4 referred to as the "Notice")
to the Corporation and to the other Shareholders, and shall set out in the
Notice the number of his Shares that he desires to sell (hereinafter in this
Section 3.4 referred to as the "Offered Shares").
(2) Upon the Notice being given, the other Shareholders (hereinafter in
this Section 3.4 sometimes collectively referred to "Offerees" and sometimes
individually referred to as an "Offeree") shall have the right to purchase all,
but not less than all, of the Offered Shares. The Offerees shall be entitled to
purchase the Offered Shares pro rata based upon the number of
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Shares beneficially owned by the Offerees or to purchase in such proportion as
the Offerees may agree in writing, at the price to be determined in accordance
with the provisions of Section 3.4(3).
(3) The price of the Offered Shares shall be the fair value of such Shares
as determined by the Accountant in accordance with generally accepted accounting
principles as at the end of the fiscal quarter of the Corporation immediately
preceding the fiscal quarter in which the Notice was given. Such determination
shall be made in writing and given to all of the Shareholders and to the
Corporation within 20 Business Days of the giving of Notice or as soon
thereafter as may be reasonably possible.
(4) For the purpose of determining such fair value, the Accountant may
appoint, at the expense of the Corporation, an independent valuer or appraiser
to assist the Accountant in such determination. The report of the Accountant,
when delivered to the Shareholders and to the Corporation, shall be conclusive
and binding upon all parties.
(5) Within 10 Business Days of having been given the Accountant's report
of the fair value of the Offered Shares, each Offeree who desires to purchase
all of the Offered Shares that he is entitled to purchase in accordance with the
provisions of Section 3.4(2) shall give notice to the Offeror, to the
Corporation and to the other Offerees. If any Offeree does not give such notice,
the Offered Shares that he had been entitled to purchase (hereinafter in this
Section 3.4(5) referred to as the "Rejected Shares") may instead be purchased by
the Offerees who did give such notice, pro rata based upon the number of Shares
beneficially owned by such Offerees as between themselves or in such other
proportion as such Offerees may agree in writing, and, within five Business Days
of the expiry of the 10 Business Day period specified in this Section 3.4(5),
each Offeree who desires to purchase all of the Rejected Shares that he is
entitled to purchase in accordance with the provisions of this Section 3.4(5)
shall give an additional notice to the Offeror, to the Corporation and to the
other Offerees. If any Offeree entitled to give the said additional notice does
not do so, the Rejected Shares that he had been entitled to purchase may instead
be purchased by the Offerees who did give such notice, and so on from time to
time until the Offerees are willing to purchase all of the Offered Shares or
until they are not willing to purchase any more. If the Offerees are willing to
purchase all, but not less than all, of the Offered Shares, the transaction of
purchase and sale shall be completed within 20 Business Days of the expiry of
the 10 Business Day period or five Business Day periods, as the case may be,
specified in this Section 3.4(5). The transaction shall be completed at the
Corporation's registered office where delivery of the Offered Shares shall be
made by the Offeror with good tide, free and clear of all liens, charges and
encumbrances, against payment by certified cheque by the Offerees.
(6) if the Offeror makes default in transferring the Offered Shares to the
Offerees as provided for in this Section 3.4, the President of the Corporation
is authorized and directed to receive the purchase money and to thereupon cause
the names of the Offerees to be entered in
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the registers of the Corporation as the holders of the Shares purchasable by
them. The said purchase money shall be held in trust by the Corporation on
behalf of the Offeror and not commingled with the Corporation's assets, except
that any interest accruing thereon shall be for the account of the Corporation.
The receipt by the Secretary of the Corporation for the purchase money shall be
a good discharge to the Offerees and, after their names have been entered in the
registers of the Corporation in exercise of the aforesaid power, the validity of
the proceedings shall not be subject to question by any person. On such
registration, the Offeror shall cease to have any right to or in respect of the
Offered Shares except the right to receive, without interest, the purchase price
received by the Secretary of the Corporation.
(7) If the Offerees do not give notice in accordance with the provisions
of Section 3.4(5) that they are willing to purchase all of the Offered Shares,
the rights of the Offerees, subject as hereinafter provided, to purchase the
Offered Shares shall forthwith cease and determine and the Offeror may sell the
Offered Shares to any person within four months after the expiry of the 10
Business Day period or five Business Day periods, as the case may be, specified
in Section 3.4(5), for a price not less than the price that would have been
payable by the Offerees and on other terms no more favourable to such person
than those that would have been applicable had the Offerees agreed to purchase
the Offered Shares in accordance with the provisions of this Section 3.4,
provided that the person to whom his Shares are to be sold agrees prior to such
transaction to be bound by this Agreement and to become a party hereto in place
of the Offeror with respect to the Offered Shares. If the Offered Shares are not
sold within such four month period on such terms, the rights of the Offerees
pursuant to this Section 3.4 shall again take effect and so on from time to
time.
3.5 Insolvency of a Shareholder
(1) If any Shareholder makes an assignment for the benefit of creditors or
is the subject of any proceedings under any bankruptcy or insolvency law or,
takes steps to wind-up or terminate its corporate existence (hereinafter in this
Section referred to as the "Offeror"), the other Shareholders (hereinafter in
this Section 3.5 sometimes collectively referred to as the "Offerees" and
sometimes individually referred to as an "Offeree") shall have the right to
purchase all, but nor less than all, of the Shares beneficially owned by the
Offeror (hereinafter in this Section 3.5 referred to as the "Offered Shares").
(2) The Offerees shall be entitled to purchase the Offered Shares pro rata
based upon the number of Shares beneficially owned by the Offerees or to
purchase in such other proportion as the Offerees may agree in writing, at the
price to be determined in accordance with the provisions of Section 3.5(3).
(3) The price of the Offered Shares shall be the fair value of such Shares
as determined by the Accountant in accordance with generally accepted accounting
principles as at the end of the fiscal quarter of the Corporation immediately
preceding the fiscal quarter in which the event
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referred to in Section 3.5(1) occurred. Such determination shall be made in
writing and given to all of the Shareholders and to the Corporation within 20
Business Days of the date of the event referred to in Section 3.5(1) or as soon
thereafter as may be reasonably possible.
(4) Within 10 Business Days of having been given the Accountant's report
of the fair value of the Offered Shares, each Offeree who desires to purchase
all of the Offered Shares that he is entitled to purchase in accordance with the
provisions of Section 3.5(2) shall give notice to the Offeror, to the
Corporation and to the other Offerees. If any Offeree does not give such notice,
the Offered Shares that he had been entitled to purchase (hereinafter in this
Section 3.5(5) referred to as the "Rejected Shares") may instead be purchased by
the Offerees who did give such notice, pro rata based upon the number of Shares
beneficially owned by such Offerees as between themselves or in such other
proportion as such Offerees may agree in writing, and, within five business Days
of the expiry of the 10 Business Day period specified in this Section 3.5(5),
each Offeree who desires to purchase all of the Rejected Shares that he is
entitled to purchase in accordance with the provisions of this Section 3.5(5)
shall give an additional notice to the Offerer, to the Corporation and to the
other Offerees. If any Offeree entitled to give the said additional notice does
not do so, the Rejected Shares that he had been entitled to purchase may instead
be purchased by the Offerees who did give such notice, and so on from time to
time until the Offerees are willing to purchase all of the Offered Shares or
until they are not willing to purchase any more. If the Offerees are willing to
purchase all, but not less than all, of the Offered Shares, the transaction of
purchase and sale shall be completed within 20 Business Days of the expiry of
the 10 Business Day period or five Business Day periods, as the case may be,
specified in this Section 3.5(5). The transaction shall be completed at the
Corporation's registered office where delivery of the Offered Shares shall be
made by the Offeror with good title, free and clear of all liens, charges and
encumbrances, against payment by certified cheque by the Offerees.
(5) If the Offeror makes default in transferring the Offered Shares to the
Offerees as provided for in this Section 3.5, the Secretary of the Corporation
is authorized and directed to receive the purchase money and to thereupon cause
the names of the Offerees to be entered in the registers of the Corporation as
the holders of the Shares purchasable by them. The said purchase money shall be
held in trust by the Corporation on behalf of the Offerer and not commingled
with the Corporation's assets, except that any interest accruing thereon shall
be for the account of the Corporation. The receipt by the Secretary of the
Corporation for the purchase money shall be a good discharge to the Offerees
and, after their names have been entered in the registers of the Corporation in
exercise of the aforesaid power, the validity of the proceedings shall not be
subject to question by any person. On such registration, the Offeror shall cease
to have any right to or with respect of the Offered Shares except the right to
receive, without interest, the purchase price received by the Secretary of the
Corporation.
(6) If the Offerees do not give notice in accordance with the provisions
of Section 3.5(5) that they are willing to purchase all of the Offered Shares,
the rights of the Offerees, subject as
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hereinafter provided, to purchase the Offered Shares shall forthwith cease and
determine and the Offeror may sell the Offered Shares to any person within four
months after the expiry of the 10 Business Day period or five Business Day
periods, as the case may be, specified in Section 3.5(5), for a price not less
than the price that would have been payable by the Offerees and on other terms
no wore favourable to such person than those that would have been applicable had
the Offerees agreed to purchase the Offered Shares in accordance with the
provisions of this Section 3.5, provided that the person to whom his Shares are
to be sold agrees prior to such transaction to be bound by this Agreement and to
become a party hereto in place of the Offeror with respect to the Offered
Shares. If the Offered Shares are not sold within such four month period on such
terms, the rights of the Offerees pursuant to this Section 3.5 shall again take
effect and so on from time to time.
3.6 Control of TLC, ARM or Ontario
If the control of either party, as determined by reference to the
provisions of the Business Corporations Act (Ontario), changes, the other
Shareholders shall have the right to purchase all, but not less than all, of the
Shares beneficially owned by such party, in the proportions and for the price
and upon the terms and conditions determined in accordance with the provisions
contained in Section 3.4 mutatis mutandis.
3.7 Shareholder Controlled Company
(1) Notwithstanding any other provision of this Agreement, each
Shareholder shall be entitled after giving notice to the other Shareholders and
to the Corporation to sell, transfer and assign all, but not less than all, of
the Shares beneficially owned by him to a corporation (hereinafter referred to
as the "Permitted Transferee"), provided that, in the case of a Shareholder who
is an individual, the only other shareholders of the Permitted Transferee are:
(i) corporations of which the Members of the Immediate Family of
the Shareholder are at all times the legal and beneficial
owners of shares carrying at least 51% of the issued and
outstanding voting rights of such corporations, which shares
are sufficient, if exercised, to elect a majority of the board
of directors of such corporations; or
(ii) trusts the sole beneficiaries of which are the Members of the
Immediate Family of the Shareholder;
and that, in the case of a Shareholder that is a corporation, the only other
shareholders of the Permitted Transferee are affiliates, as determined by the
provisions of the Business Corporations Act (Ontario), of such Shareholder and,
in either case, the Permitted Transferee has entered into an agreement prior to
such transaction not to sell, transfer or assign such Shares except to
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another corporation controlled, as determined by the provisions of the Business
Corporations Act (Ontario), by the Shareholder from whom it acquired the Shares
and to become a party hereto.
(2) Notwithstanding the completion of any sale of the Shares by a
Shareholder to a Permitted Transferee pursuant to Section 3.7(1), that
Shareholder shall:
(i) not sell, transfer, assign, pledge, charge or in any way
dispose of or encumber his shares of the Permitted Transferee;
(ii) continue to be bound by all the obligations hereunder as if he
continued to be a Shareholder of the Corporation and perform
such obligations to the extent that the Permitted Transferee
fails to do so; and
(iii) at all times be the legal and beneficial owner of shares
carrying at least 51% of the issued and outstanding voting
rights of the Permitted Transferee, which shares shall be
sufficient, if exercised, to elect a majority of the board of
directors of the Permitted Transferee.
(3) If any Shareholder who has sold, transferred, or assigned his Shares
to a Permitted Transferee pursuant to the provisions of Section 3.7(1) fails to
comply with any of the provisions of Section 3.7(2), the other Shareholders
(hereinafter in this Section 3.7 sometimes collectively referred to as the
"Offerees" and sometimes individually referred to as an "Offeree") shall have
the right to purchase all, but not less than all, of the Shares owned by the
Permitted Transferee (such Shares hereinafter in this Section 3.7 referred to as
the "Offered Shares" and such Permitted Transferee hereinafter in this Section
3.7 referred to as the "Offeror").
(4) The Offerees shall have the right to purchase the Offered Shares pro
rata based upon the number of Shares beneficially owned by the Offerees or to
purchase in such other proportion as the Offerees may agree in writing, at the
price to be determined in accordance with the provisions of Section 3.5(5).
(5) The price of the Offered Shares shall be the lower of the fair value
and the book value of such Shares as determined by the Accountant in accordance
with generally accepted accounting principles as at the end of the fiscal
quarter immediately preceding the fiscal quarter in which the event referred to
in Section 3.4(3) occurred. Such determination shall be made in writing and
given to all of the Shareholders and to the Corporation within 20 Business Days
of the date of the event referred to in Section 3.4(3) or as soon thereafter as
may be reasonably possible.
(6) Within 10 Business Days of having been given the Accountant's report
of the fair value or book value of the Offered Shares, each Offeree who desires
to purchase all of the Offered Shares that he is entitled to purchase in
accordance with the provisions of Section 3.4(3)
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shall give notice to the Offeror, to the Corporation and to the other Offerees.
If any Offeree does not give such notice, the Offered Shares that he had been
entitled to purchase (hereinafter in this Section 3.7(6) referred to as the
"Rejected Shares") may instead be purchased by the Offerees who did give such
notice, pro rata based upon the number of Shares beneficially owned by such
Offerees as between themselves or in such other proportion as such Offerees may
agree in writing, and, within five Business Days of the expiry of the 10
Business Day period specified in this Section 3.7(6), each Offeree who desires
to purchase all of the Rejected Shares that he is entitled to purchase in
accordance with the provisions of this Section 3.7(6) shall give an additional
notice to the Offeror, to the Corporation and to the other Offerees. If any
Offeree entitled to give the said additional notice does not do so, the Rejected
Shares that he had been entitled to purchase may instead be purchased by the
Offerees who did give such notice, and so on from time to time until the
Offerees are willing to purchase all of the Offered Shares or until they are not
willing to purchase any more. If the Offerees are willing to purchase all, but
not less than all, of the Offered Shares, the transaction of purchase and sale
shall be completed within 20 Business Days of the expiry of the 10 Business Day
period or five Business Day periods, as the case may be, specified in this
Section 3.7(6). The transaction shall be completed at the Corporation's
registered office where delivery of the Offered Shares shall be made by the
Offeror with good title, free and clear of all liens, charges and encumbrances,
against payment by certified cheque by the Offerees.
(7) If the Offeror makes default in transferring the Offered Shares to the
Offerees as provided for in this Section 3.7, the Secretary of the Corporation
is authorized and directed to receive the purchase money and to thereupon cause
the names of the Offerees to be entered in the registers of the Corporation as
the holders of the Shares purchasable by them. The said purchase money shall be
held in trust by the Corporation on behalf of the Offeror and not commingled
with the Corporation's assets, except that any interest accruing thereon shall
be for the account of the Corporation. The receipt by the Secretary of the
Corporation for the purchase money shall be a good discharge to the Offerees
and, after their names have been entered in the registers of the Corporation in
exercise of the aforesaid power, the validity of the proceedings shall not be
subject to question by any person. On such registration, the Offerer shall cease
to have any right to or in respect of the Offered Shares except the right to
receive, without interest, the purchase price received by the Secretary of the
Corporation.
3.8 Pledge of Shares
Any Shareholder may pledge, charge, mortgage or otherwise specifically
encumber his Shares to a bank or other financial institution for the purpose of
securing any borrowings by such Shareholder, provided that such bank or
financial institution acknowledges to the parties to this Agreement in writing
that the pledge, charge, mortgage or encumbrance of such Shares shall at all
times be subject to all the terms and conditions of this Agreement, including
the prohibition against pledging, charging or mortgaging or otherwise
encumbering such Shares contained in Section 3.1 except as permitted pursuant to
this Section 3.8.
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3.9 Exclusivity of Sections
Each of Sections 3.4, 3.4, 3.6 and 3.7 are exclusive and the provisions
thereof may only be relied upon by any party hereto if the provisions of one of
the other of such Sections are not at the same time being relied upon by the
same or another party hereto.
ARTICLE FOUR - GENERAL
4.1. Non-Competition
(1) None of the Shareholders will, without the prior written consent of
the other Shareholders, at any time while it is a shareholder of the Corporation
and for a period of 2 years, individually or in partnership or jointly or in
conjunction with any person as principal, agent, employee, shareholder (other
than a holding of shares listed on a Canadian or United Stares stock exchange
that does not exceed 5% of the outstanding shares so listed) or in any other
manner whatsoever carry on or be engaged in or be concerned with or interested
in or advise, lend money to, guarantee the debts or obligations of or permit his
name or any part thereof to be used or employed by any person engaged in or
concerned with or interested in within the United States or Canada any business
similar to or competitive with the Business.
(2) Each of the Shareholders confirms that all restrictions in Section 4.1
are reasonable and valid and all defences to the strict enforcement thereof are
waived by each Shareholder.
4.2 Benefit of the Agreement
This Agreement shall enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto.
4.3 Entire Agreement
This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties hereto with respect thereto.
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.
4.4 Amendments and Waivers
No amendment to this Agreement shall be valid or binding unless set forth
in writing and duly executed by all of the parties hereto. No waiver of any
breach of any provision of this Agreement shall be effective or binding unless
made in writing and signed by the party
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purporting to give the same and, unless otherwise provided in the written
waiver, shall be limited to the specific breach waived.
4.5 Assignment
Except as may be expressly provided in this Agreement, none of the parties
hereto may assign his rights or obligations under this Agreement without the
prior written consent of all of the other parties hereto.
4.6 Termination
This Agreement shall terminate upon:
(a) the written agreement of all of the Shareholders;
(b) the dissolution or bankruptcy of the Corporation or the making by
the Corporation of an assignment under the provisions of the
Bankruptcy and Insolvency Act; or
(c) one Shareholder becoming the beneficial owner of all of the Shares.
4.7 Severability
If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision or part thereof and the remaining part of such
provision and all other provisions hereof shall continue in full force and
effect.
4.8 Notices
Any demand, notice or other communication (hereinafter in this Section 4
referred to as a "Communication") to be given in connection with this Agreement
shall be given in writing and may be given by personal delivery, by registered
mail or by transmittal by telex addressed to the recipient as follows:
To: TLC
206 Laird Drive
Suite 100
Toronto, Ontario
M4G 3W4
Attention: Elias Vamvakas
Fax No.: (416) 467-6882
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To: ARM
4149 Catherine Street East
Dorchester, Ontario
N0L 1G0
Attention: Stephen M. Caslick
Fax No.: (519) 268-3506
To: Ontario
680 Waterloo Street
London, Ontario
N6A 3V8
Attention: Ronald J. Kelly
Fax No.: (519) 672-9296
To: Corporation
200 Queens Avenue
London, Ontario
N6A 1J3
Attention: Stephen M. Caslick
or such other address, telex number or individual as may be designated by notice
by any party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if given by registered mail, on the 5th Business Day following the deposit
thereof in the mail and, if given by telex, on the day of transmittal thereof.
If the party giving any Communication knows or ought reasonably to know of any
difficulties with the postal system which might affect the delivery of mail, any
such Communication shall not be mailed but shall be given by personal delivery
or by telex.
4.9 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
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IN WITNESS WHEREOF the parties have executed this Agreement.
TLC THE LASER CENTER INC.
Per: /s/ [ILLEGIBLE]
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A.R.M. GROUP INC.
Per: /s/ [ILLEGIBLE]
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1134445 ONTARIO LIMITED
Per: /s/ [ILLEGIBLE]
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VISION CORPORATION
Per: /s/ R. J. Kelly
------------------------------------