SHARE EXCHANGE AGREEMENT
AMONG
APTA HOLDINGS, INC. ,
HARRY J. SANTORO, STEPHEN M. ROBINSON,
CONVERGIX INC.,
RALPH EISENSCHMID IN TRUST FOR
INTELISYS ACQUISITION INC., A COMPANY TO BE INCORPORATED,
RALPH EISENSCHMID IN TRUST FOR
INTELISYS (NOVA SCOTIA) COMPANY,
AN UNLIMITED LIABILITY COMPANY TO BE FORMED,
and
RALPH EISENSCHMID
(on his own behalf and as attorney and agent for
the shareholders of Convergix Inc.)
November 22, 2002
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT is dated for reference as of the 15th day of
November, 2002.
BETWEEN:
RALPH EISENSCHMID IN TRUST FOR INTELISYS
ACQUISITION INC., a company to be
incorporated pursuant to the laws of the
Province of New Brunswick with its principal
office at 815 Bombardier Street, Shediac, New
Brunswick, E4P 1H9
("Exchangeco")
OF THE FIRST PART
AND:
RALPH EISENSCHMID IN TRUST FOR INTELISYS
(NOVA SCOTIA) COMPANY, an unlimited liability
company to be formed pursuant to the laws of
the Province of Nova Scotia with its
principal office at 815 Bombardier Street,
Shediac, New Brunswick, E4P 1H9
("Novascotiaco")
OF THE SECOND PART
AND:
CONVERGIX INC., a company incorporated
pursuant to the laws of the Province of New
Brunswick and having its principal office at
815 Bombardier Street, Shediac, New
Brunswick, E4P 1H9
(the "Company")
OF THE THIRD PART
AND:
APTA HOLDINGS, INC., a corporation
incorporated under the laws of the State of
Delaware, having its principal office at 215
West Main Street, Maple Share, New Jersey,
08052
("Apta")
OF THE FOURTH PART
AND:
RALPH EISENSCHMID, an individual resident at 65
Mathieu-Martin, Grand Barachois, New Brunswick,
E4P 7V7, (the "Depositary") on his own behalf and
as attorney and agent for all of the shareholders
of the Company
OF THE FIFTH PART
(the Depositary and the shareholders of the
Company being hereinafter collectively referred to
as the "Vendors")
AND:
HARRY J. SANTORO, an individual resident at
215 West Main Street, Maple Share, New
Jersey, 08052,
OF THE SIXTH PART
AND:
STEPHEN M. ROBINSON, an individual resident
at 126 Wharton Court, Shamong, New Jersey,
08088,
OF THE SEVENTH PART
(the foregoing parties of the sixth to
seventh part being hereinafter collectively
referred to as the "Principals")
WHEREAS the Vendors are the registered holders and
beneficial owners of all of the issued and outstanding Class
A common shares in the capital of the Company as set out in
Schedule "A" hereto (the "Shares");
AND WHEREAS Exchangeco and Novascotiaco are wholly-owned
subsidiaries of Apta; and
AND WHEREAS the Vendors have agreed to sell and Exchangeco
and Novascotiaco have agreed to purchase all of the Shares
on the terms and conditions set out in this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT, in
consideration of the premises, covenants, terms, conditions
representations and warranties hereinafter set forth, the
parties hereto agree each with the other as follows:
ARTICLE 1 - INTERPRETATION
1.1 Definitions. Where used in this Agreement and the
recitals and any schedules hereto, each of the following
words will have the following meanings:
(a) "Apta" means Apta Holdings, Inc.
(b) "Apta's Financial Statements" means the audited
financial statements of Apta for the year ended December 31,
2001, and its interim financial statements for the period
ended September 30, 2002, attached hereto as Schedule "J".
(c) "Apta Shares" means shares in the common stock of Apta,
$0.001 par value.
(d) "Assets" means all of personal property, chooses in
action, intangible or intellectual property, including
patents, copyrights, trade-marks, trade names or licenses,
and all other assets of whatsoever nature owned or
purportedly owned by a Party.
(e) "Asset Sale Consulting Agreement" means the consulting
agreement attached hereto as Schedule "P", to be entered
into by Apta and the Principals on Closing.
(f) "Best Efforts" means the efforts that a prudent Person
desirous of achieving a result would use in similar
circumstances to attempt to cause such result to be achieved
as expeditiously as possible; provided, however, that an
obligation to use Best Efforts under this Agreement does not
require the Person subject to that obligation to take
actions that would result in a materially adverse change in
the benefits to such Person of this Agreement and the
transactions contemplated herein.
(g) "Bulletin Board" means the Over-the-Counter Bulletin
Board, an over-the-counter securities market operated by the
National Association of Securities Dealers.
(h) "Business" means the business carried on by the Company
described as the development of airline management software.
(i) "Canadian Securities Law" means the securities laws of
any province or territory of Canada in which recipients of
any shares under this Agreement may reside, and the
regulations, rules and policies promulgated thereunder, both
as amended from time to time.
(j) "Canadian Securities Regulators" means the securities
commissions or other Governmental Authorities authorized to
administer and enforce securities laws in any province or
territory of Canada.
(k) "Claim" means any claims, demands, actions, causes of
action, damages, losses, costs, fines, penalties, interest,
liabilities and expenses, including, without limitation,
reasonable legal fees.
(l) "Closing" means the completion of the purchase of the
Shares by Exchangeco in accordance with the terms and
conditions of this Agreement.
(m) "Closing Date" means December 31, 2002, or such earlier
or later date as the Parties may agree on.
(n) "Closing Time" means 3:00 p.m. (Toronto time) on the
Closing Date, or such earlier or later time on the Closing
Date as the Parties may agree to.
(o) "Company" means Convergix Inc.
(p) "Company's Financial Statements" means the financial
statements of the Company for its two most recently
completed fiscal years and its interim financial statements
for its two most recently completed fiscal periods, prepared
in accordance with U.S. GAAP, to be attached hereto as
Schedule "D".
(q) "Company's Private Placement" means the private
placement of 2,666,667 Shares at CDN$0.30 per Share to raise
$800,000, subject to the Company's obligation to repurchase
said Shares (or securities issued in exchange for the same)
by March 31, 2003, at the greater of (i) the last closing
price of the Shares (or securities issued in exchange for
the same) on the Over-the-Counter Bulletin Board and (ii)
CDN$0.34 per Share.
(r) "Constating Documents" means (i) the articles or
certificate of incorporation and the bylaws of a
corporation; (ii) any charter or similar document adopted or
filed in connection with the creation, formation, or
organization of a Person; and (iii) any amendment to any of
the foregoing.
(s) "Contracts" means all of the material commitments,
agreements, contracts, arrangements, instruments, leases and
other documents entered into by the Company, by which the
Company is bound or to which the Company or the Assets are
subject (other than the Permitted Encumbrances) and which
are described in Schedule "H".
(t) "Depositary" means Ralph Eisenschmid acting as attorney
and agent for the Vendors pursuant to powers of attorney
granted to the Depositary by the Vendors under subscription
agreements between the Vendors and the Company pursuant to
which the Vendors acquired shares in the Company.
(u) "Encumbrance" means any mortgage, charge, pledge,
hypothecation, debenture, lien, security interest,
encumbrance, claim, option, right of first refusal,
community of property or restriction of any kind, including
any restriction on the use, voting, transfer, receipt of
income, or exercise of any other attribute of ownership,
regardless of form and whether consensual or arising by
operation of law.
(v) "Exchangeable Shares" means Class B Special Shares of
Exchangeco, being subordinate, non-voting shares, each
Exchangeable Share being exchangeable, redeemable or
retractable for one (1) Apta Share on terms described in the
Support Agreement (including all schedules attached
thereto).
(w) "Exchangeco" means InteliSys Acquisition Inc.
(x) "GAAP" means generally-accepted accounting principles.
(y) "Governmental Authority" means any applicable Canadian
or U.S. federal, provincial, state or municipal government,
agency, ministry, commission, crown corporation, department,
inspector, official or body of any kind exercising or
entitled to exercise any administrative, executive,
judicial, legislative, police, regulatory or taxing
authority or power of any nature.
(z) "Group A Vendors" means those Vendors listed in
Schedule "A" hereto as being non-residents of Canada or
exempt from taxation under the Tax Act, or who have elected
to receive Apta Shares directly in exchange for their Shares
regardless of the Canadian tax consequences of doing so.
(aa) "Group B Vendors" means those Vendors listed in
Schedule "A" hereto as being residents of Canada or other
persons taxable under the Tax Act, other than those who have
elected to be part of the Group A Vendors.
(bb) "Indebtedness" means all liabilities, debts, accounts
payable and other monetary obligations.
(cc) "Interim Period" means the period commencing on the
execution of this Agreement and ending at the Closing Time.
(dd) "Listing Status" means Apta's status as a company whose
common shares are quoted for trading on the Bulletin Board
and which is in good standing with the Bulletin Board and is
not in default under any of its rules, policies or by-laws.
(ee) "material" means, when used with respect to an
obligation, contract, liability or any other matter, that
the obligation, contract, liability or such other matter is
of such a nature as to be substantially likely to be
considered important to a reasonable investor in making an
investment decision, including a decision to purchase, hold
or sell securities of the Person in question.
(ff) "Material Adverse Change" a material adverse change in
or a material adverse effect on the businesses, assets,
operations, results of operations or financial condition of
a Person and its subsidiaries (if any) taken as a whole,
provided that any adverse effects arising from or relating
to the following matters (individually and in the aggregate)
shall be excluded in determining whether such a material
adverse effect has occurred: (i) general economic conditions
or conditions (including conditions in financial markets)
generally prevailing in the industry or market segment in
which the corporate entity and its subsidiaries conduct
their respective businesses, (ii) the announcement or
pendency of the transactions contemplated in this Agreement
or the closing or pendency of any transaction of the Parties
which was publicly announced as of the date of this
Agreement; and (iii) the taking by any Party of any action
(or omission by any Party to take any action) at the request
of or with the permission of the other Parties; provided,
further, that a decline in the public trading price of Apta
Shares shall not by itself constitute a Material Adverse
Change.
(gg) "Ordinary Course of Business" - an action taken by a
Person will be deemed to have been taken in the "Ordinary
Course of Business" only if:
(i) such action is consistent with the past practices
of such Person and is taken in the ordinary course
of the normal operations of such Person; and
(ii) 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) and is not required to be specifically
authorized by the parent company (if any) of such
Person; and
(iii) such action is similar in nature and
magnitude to actions customarily taken, without
any authorization by the board of directors (or by
any Person or group of Persons exercising similar
authority), in the ordinary course of the normal
day-to-day operations of other Persons that are in
the same line of business as such Person.
(hh) "Parties" means the parties to this Agreement and
"Party" means any one of them.
(ii) "Person" means any individual, corporation (including
any non-profit corporation), body corporate, partnership,
limited partnership, limited liability company, joint
venture, society, association, trust, unincorporated
organization, Governmental Authority or other entity, or any
trustee, executor, administrator, or other legal
representative.
(jj) "Permitted Encumbrances" means, with respect to the
Company and the Shares, the Encumbrances described in
Schedule "G" hereto, and with respect to Apta, the
Encumbrances described in Schedule "N" hereto.
(kk) "Principals" means Harry J. Santoro and Stephen M.
Robinson, being the principal shareholders, officers and/or
directors of Apta prior to Closing.
(ll) "Principals' Guarantee" means the guarantee attached
hereto as Schedule "Q" to be executed and delivered by the
Principals to Apta at Closing, whereby if the proceeds of
the sale of the Assets of Apta under the Asset Sale
Consulting Agreement are not sufficient to repay all
Indebtedness of Apta, the Principals shall pay to Apta the
amount by which said Indebtedness exceeds the proceeds of
said sale.
(mm) "Reporting Issuer Status" means Apta's status as a
reporting company in the United States under U.S. Securities
Law, in good standing and not in default under U.S.
Securities Law, but not a "reporting issuer" in any province
of territory of Canada, as that term is defined in Canadian
Securities Law.
(nn) "SEC" means the U.S. Securities and Exchange
Commission;
(oo) "Shares" means the Class A common shares of the Company
held by the Vendors as set out in Schedule "A" hereto.
(pp) "Special Voting Share" means the one share of Series
"A" of the preference stock of Apta issuable in series,
which entitles the holder of record to a number of votes at
meetings of holders of Apta Shares equal to the number of
Exchangeable Shares outstanding from time to time (other
than Exchangeable Shares held by Apta or its affiliates),
which share is to be issued to, deposited with, and voted
by, the Voting Agent as described in this Agreement and the
Voting and Exchange Agency Agreement.
(qq) "Support Agreement" means the exchangeable share
support agreement to be entered into by Apta, Exchangeco and
NovaScotiaco on or before Closing.
(rr) "Tax Act" means the Income Tax Act (Canada), as amended
from time to time.
(ss) "U.S. Securities Law" means the United States
Securities Act of 1933 and the United States Securities
Exchange Act of 1934, the securities laws of any State of
the United States of America, and the regulations, rules and
policies promulgated thereunder, all as amended from time to
time.
(tt) "Vendors" means collectively the persons named in
Schedule "A" hereto.
(uu) "Voting and Exchange Agency Agreement" means the voting
and exchange agency agreement attached hereto as Schedule
"C", to be entered into by Apta, Exchangeco and the Voting
Agent at Closing.
(vv) "Voting Agent" means Carbonaro Sugar Szweras LLP or
such other agent as may be appointed as agent under the
Voting and Exchange Agency Agreement, and any successor
agent appointed under and subject to the provisions of the
Voting and Exchange Agency Agreement.
1.2 Interpretation. In this Agreement, except as otherwise
expressly provided:
(a) "Agreement" means this agreement, including the
preamble and the schedules hereto, as it may from time to
time be supplemented or amended in effect;
(b) all references in this Agreement to a designated
"paragraph" or other subdivision or to a Schedule is to the
designated paragraph or other subdivision of, or Schedule,
to this Agreement;
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole
and not to any particular paragraph or other subdivision or
Schedule;
(d) the headings are for convenience only and do not form a
part of this Agreement and are not intended to interpret,
define, or limit the scope, extent or intent of this
Agreement or any provision hereof;
(e) the singular of any term includes the plural, and vice
versa, the use of any term is equally applicable to any
gender and, where applicable, a body corporate, the word
"or" is not exclusive and the word "including" is not
limited (whether or not non-limited language, such as
"without limitation" or "but not limited" or words of
similar import, are used with reference thereto);
(f) any accounting term not otherwise defined has the
meanings assigned to it in accordance with generally
accepted accounting principles applicable to the United
States of America;
(g) any reference to a statute includes and is a reference
to that statute and to the regulations made pursuant
thereto, with all amendments made thereto and in force from
time to time, and to any statute or regulations that may be
passed which has the effect of supplementing or superseding
that statute or regulations;
(h) except as otherwise provided, any dollar amount
referred to in this Agreement is in U.S. currency; and
(i) any other term defined within the text of this
Agreement has the meaning so ascribed.
1.3 Schedules. The following are the Schedules to this
Agreement:
Schedu Description
le
A The Vendors and their
Shareholdings
B Support Agreement
C Voting and Exchange Agency
Agreement
D Company's Financial
Statements
E Assets of the Company
F Indebtedness of the Company
G Permitted Encumbrances of
the Company
H Material Contracts of the
Company
I Employment Contracts of the
Company
J Apta's Financial Statements
K Assets of Apta
L Indebtedness of Apta
M Permitted Encumbrances of
Apta
N Material Contracts of Apta
O Employment Contracts of
Apta
P Asset Sale Consulting
Agreement
Q Principals' Guarantee
ARTICLE 2 - PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale. Subject to the conditions and upon
the terms hereinafter set forth, Exchangeco and Apta agree
to purchase and the Vendors agree to sell to Exchangeco and
Apta all of their right, title and interest in and to the
Shares.
2.2 Purchase Price. The purchase price for the Shares
shall consist of an aggregate of 25,000,000 Apta Shares
and/or Exchangeable Shares. In consideration for the sale
of the Shares by the Group A Vendors, Apta shall issue
3,295,000 Apta Shares to the Group A Vendors in the
aggregate. In consideration for the sale of the Shares by
the Group B Vendors, Exchangeco shall issue 21,705,000
Exchangeable Shares to the Group B Vendors in the aggregate.
The Apta Shares and the Exchangeable Shares shall be issued
at Closing, at which time each Vendor will receive a number
of Apta Shares or Exchangeable Shares proportionate to his
interest in the Company as set out in Schedule "A" hereto;
provided that Apta and Exchangeco shall be entitled to
withhold that number (rounded up to the nearest whole share)
of Exchangeable Shares or Apta Shares, as the case may be,
equal to, but not in excess of (other than due to rounding),
the amount of any withholding obligations of Apta or
Exchangeco under any tax applicable to the sale of the
Shares or the exchange of the Exchangeable Shares. All
Exchangeable Shares and all Apta Shares issued under this
Agreement or in exchange for the Exchangeable Shares shall
be endorsed with a legend under U.S. Securities Law and
Canadian Securities Law.
2.3 Exchangeable Shares. The Exchangeable Shares to be
issued by Exchangeco pursuant to this Agreement shall bear
the rights, privileges, restrictions and conditions set out
in the Support Agreement (and all schedules thereto)
attached hereto as Schedule "B".
2.4 Support Agreement. On or before Closing, Apta,
Exchangeco and NovaScotiaco shall enter into the Support
Agreement in the form attached hereto as Schedule "B".
2.5 Voting and Exchange Agency Agreement. On Closing,
Apta, Exchangeco and the Voting Agent shall enter into the
Voting and Exchange Agency Agreement in the form attached
hereto as Schedule "C". Pursuant to the Voting and Exchange
Agency Agreement, Apta shall issue to the Voting Agent one
Special Voting Share.
2.6 Accounting Consequences
.. It is intended by the parties hereto that the purchase
and sale of the Shares under this Agreement shall qualify
for accounting treatment as a purchase under U.S. GAAP.
2.7 Tax Treatment
.. It is intended that the transactions contemplated in this
Agreement shall generally constitute (i) a taxable exchange
for United States federal income tax purposes (not
qualifying under Sections 368 or 351 of the United States
Internal Revenue Code of 1986, as amended) to persons who
are otherwise subject to taxation in the United States on
the sale or exchange of Shares, and (ii) a tax deferred
reorganization for Canadian federal income tax purposes for
owners of Shares who are residents of Canada for Canadian
federal income tax purposes who receive Exchangeable Shares
as a consequence of the purchase and sale of the Shares.
2.8 Securities Law Exemptions and Resale Restrictions. The
sale of the Shares, the issuance of the Apta Shares at
Closing to such Group A Vendors as may be resident in
Canada, and the issuance of the Exchangeable Shares to the
Group B Vendors shall be made in reliance on the exemptions
from prospectus and registration requirements contained in
sections 7(h) and 13(12) of the Security Frauds Prevention
Act (New Brunswick) and the corresponding provisions of any
other applicable Canadian Securities Law. The issuance of
the Apta Shares to the other Group A Vendors at Closing
shall be made in reliance on the exemptions from the
registration requirements of U.S. Securities Law contained
in Rule 506 under Regulation D or in Regulation S under the
Securities Act of 1933, and the applicable securities laws
of the Group A Vendor's jurisdiction of residence. The
issuance of the Apta Shares to the Group B Vendors on the
exchange of their Exchangeable Shares shall be made in
reliance on an exemption order from the relevant Canadian
Securities Regulators (if necessary) and the exemption from
the registration requirements of U.S. Securities Law
contained in Regulation S under the Securities Act of 1933.
The Vendors hereby acknowledge that as a result:
(a) any Exchangeable Shares or Apta Shares that they
receive pursuant to this Agreement will be subject to
resale restrictions in accordance with Canadian
Securities Law and/or U.S. Securities Law, as amended,
and the rules thereunder, as applicable, and that
certificates representing the Exchangeable Shares or
Apta Shares will be affixed with the following legends
describing such restrictions:
(i) on the Apta Shares:
"The shares represented by this certificate have
not been registered under the Securities Act of
1933. The shares have been acquired for
investment and may not be sold, transferred or
assigned in the absence of an effective
registration statement for these shares under the
Securities Act of 1933 or an opinion of the
issuer's counsel that registration is not required
under such Act."
(ii) on the Exchangeable Shares:
"The shares represented by this certificate have
not been issued pursuant to a prospectus filed
with a securities regulator in any province or
territory of Canada. Accordingly they may not be
sold, transferred, hypothecated or otherwise
traded on or through a securities market in Canada
or otherwise in Canada or to or for the benefit of
a resident of Canada in the absence of an
effective prospectus for these shares under the
applicable securities laws or an opinion of the
issuer's counsel that a prospectus is not required
under such laws."
(b) the Exchangeable Shares and the Apta Shares are
"restricted shares" and cannot be sold, pledged, transferred
or otherwise dealt with other than pursuant to a prospectus
or registration statement filed with the relevant Canadian
Securities Regulators or SEC, or pursuant to an exemption
therefrom provided under the relevant Canadian Securities
Law and U.S. Securities Law, as amended, and the rules and
regulations promulgated thereunder, except that there is no
such restriction on the shares held by residents of New
Brunswick;
(c) in some provinces of Canada, the Exchangeable Shares
cannot be exchanged for the Apta Shares unless an
appropriate exemption from the prospectus requirements in
Canadian Securities Law is available or the relevant
Canadian Securities Regulators issue a discretionary relief
order permitting the exchange;
(d) Apta Shares received by Vendors who are not resident in
the United States of America may not be sold, assigned,
transferred or otherwise disposed of to any resident of
the United States of America for a period of twelve
(12) months from the date of issuance;
(e) the resale exemptions provided under Canadian
Securities Law and U.S. Securities Law may not be
generally available because of the conditions and
limitations of said exemptions, and that Exchangeco and
Apta are under no obligation to take any action to make
any of said exemptions available to the Vendor; and
(f) only Apta can register the Apta Shares or file a
prospectus to qualify the Apta Shares for immediate
resale and Apta has not made any representations to the
Vendors that it will do so, except as set out herein
2.9 Securities Law Compliance. The Vendors hereby agree
that they shall not sell, pledge, transfer or otherwise deal
with the Exchangeable Shares or the Apta Shares without
obtaining a favourable opinion of counsel or such other
evidence as may be required by Exchangeco or Apta, that the
proposed dealing will not be in violation of Canadian
Securities Law, U.S. Securities Law, or any other applicable
securities laws, and the rules and regulations promulgated
thereunder.
2.10 Non-Residents. It is acknowledged that upon the
issuance of Apta Shares or the Exchangeable Shares, each
Vendor that is a non-resident of Canada within the meaning
of section 116 of the Tax Act, shall be required to provide
an executed certificate and take all other steps required
under section 116 of the Tax Act. It is acknowledged that
the Vendors will bear full responsibility for any Canadian
or U.S. tax liabilities arising from this transaction, and
that neither Apta nor Exchangeco shall be obliged to deliver
any certificates representing Apta Shares or Exchangeable
Shares until the requisite certificate under section 116 of
the Tax Act has been obtained by the Vendor in question.
ARTICLE 3 - FURTHER COVENANTS OF THE PARTIES
3.1 Due Diligence Review. During the Interim Period, the
Company, Exchangeco and Apta shall each:
(a) allow all Parties and their representatives full and
free access during normal business hours to their
corporate minute books and records, including contracts
and share registers, personnel, properties and other
documents and data;
(b) provide to all Parties and their representatives copies
of all such contracts, books, records and other
existing documents and data as such Parties or their
representatives may reasonably request; and
(c) provide to all Parties and their representatives such
other information about themselves as such Parties or
their representatives may reasonably request.
3.2 Business in the Ordinary Course. Except as set out in
this Agreement, during the Interim Period, each of Apta and
the Company shall conduct its business in the Ordinary
Course of Business and shall not, without the written
consent of the other Parties or as otherwise permitted under
this Agreement:
(a) issue, or enter into any agreements to issue, any
securities, including without limitation, shares, warrants,
options, convertible securities or rights to purchase
shares, except that:
(i) the Company shall be permitted to issue additional
securities during the Interim Period as part of
the Company's Private Placement and the Company's
Debt Settlements, and
(ii) Apta shall be permitted to issue additional common
stock during the Interim Period proved that the
total outstanding common stock of Apta at the
Closing Time shall not exceed 3,000,000 shares of
common stock;
(b) redeem, purchase or otherwise acquire or commit to
acquire any of its issued and outstanding shares;
(c) amend its Constating Documents;
(d) effect any subdivision, consolidation or
reclassification of any of its issued and outstanding
shares;
(e) acquire or dispose of any Assets except in the Ordinary
Course of Business or as contemplated in this Agreement; or
(f) take any action or fail to take any reasonable action
within its control, as a result of which a Material Adverse
Change is likely to occur.
3.3 Reorganization. On or before Closing Apta shall:
(a) amend its certificate of incorporation so as to:
(i) increase its authorized share capital to at least
50,000,000 shares of $0.001 par value each, and
(ii) create a new class of preference shares of $0.001
par value each issuable in series of which Apta
will be authorized to issue at least 1,000 shares;
(b) change its name to "Intelisys Aviation Systems U.S.A.
Inc." or such other name as may be acceptable to the
relevant Governmental Authority;
(c) amend section 5.1 of its stock option plan to read:
"The stock to be issued under the Plan shall be shares
of authorized but unissued or re-acquired Common Stock,
including shares repurchased by the Corporation on the
open market. The maximum number of shares of Common
Stock which may be issued over the term of the Plan
shall not exceed 2,000,000 without further shareholder
approval."; and
(d) make such additional amendments to its corporate
structure as the Company may request.
3.4 Shareholder Approval. On or before Closing, Apta shall
obtain the approval of its shareholders for:
(a) the corporate changes contemplated in subsections
3.3(a), (b) and (c); and
(b) the migration of Apta's corporate charter to the State
of Florida at the discretion of Apta's board of
directors; and
(c) the amendment of Apta's certificate of incorporation
upon the migration of its charter to the State of
Florida to increase its authorized share capital to at
least 50,000,000 common shares of $0.001 par value
each, and at least 30,000,000 preference shares
issuable in series.
3.5 Sale of Assets. Upon Closing, Apta shall enter into an
agreement with the Principals (the "Asset Sale Consulting
Agreement") whereby it shall retain the Principals as its
agents with authority to sell all of its Assets, including
the shares of all of its subsidiaries, other than any Assets
acquired under this Agreement. Pursuant to the Asset Sale
Consulting Agreement, the Principals shall sell such Assets
within three (3) months from the Closing Date. The proceeds
of such sale shall be used to repay all Indebtedness of Apta
incurred prior to Closing or in connection with this
Agreement. As compensation for finding buyers for Apta's
Assets and negotiating with them, if the proceeds of such
sale exceed the Indebtedness to be repaid, the excess shall
be paid to the Principals.
3.6 Principals' Guarantee. The Principals hereby agree
that if the proceeds of the sale of the Assets of Apta under
the Asset Sale Consulting Agreement are not sufficient to
repay all Indebtedness of Apta arising from the activities
of Apta prior to Closing, the Principals shall pay to Apta
the amount by which said Indebtedness exceeds the proceeds
of said sale. Upon Closing, the Principals shall execute
and deliver to Apta a guarantee to that effect in the form
attached hereto as Schedule "Q" (the "Principals'
Guarantee").
3.7 Change of Management. Upon Closing, all of the
directors and officers of Apta shall resign and shall be
replaced by such persons as the Depositary on behalf of the
Vendors shall designate.
3.8 Public Notice. Upon the execution of this Agreement
Apta shall prepare and file with the SEC a Form 8-K Current
Report and a properly prepared information statement, and
shall issue a press release mutually acceptable to the
Parties which shall also be filed as an exhibit to the Form
8-K.
3.9 Company's Private Placement. The Parties acknowledge
that the Company has to date raised CDN$700,000 under the
Company's Private Placement, but that the balance of the
funds to be raised may not be received until after the
Closing. The Parties agree that at Closing, the Company
shall assign to Apta and Apta shall assume from the Company
all of the rights and obligations of the Company under its
subscription agreement with the investor(s) of the
Company's Private Placement, such that Apta shall issue to
said investor(s) Apta Shares for the balance of the
Company's Private Placement.
3.10 Legal Fees. On or before Closing, the Company shall
pay the legal fees of Apta's counsel, Stephen M. Robinson,
P.A., being $50,000, as follows:
(a) $25,000 on Closing; and
(b) $25,000 on the earlier of (i) the first draw-down of
funds by Apta under any public offering or private
placement of its securities other than funds received
under the Company's Private Placement as assigned
pursuant to section 3.9 above, or (ii) June 30, 2003.
3.11 Company's Financial Statements and Business Plan. The
Company shall prepare or cause to be prepared audited
financial statements of the Company for its two most
recently completed fiscal years and its interim (quarterly)
financial statements for its two most recently completed
fiscal periods in accordance with U.S. GAAP, and shall
deliver the same to the Principals and Apta on or before
Closing. The Company shall deliver with the Company's
Financial Statements a current and detailed business plan of
the Company with financial projections.
3.12 Canadian Securities Compliance
.. Apta shall use its Best Efforts to obtain, within ninety
(90) days after the Closing Date, any and all orders
required from the relevant Canadian Securities Regulators
(if necessary) to permit the issuance of the Apta Shares
issued pursuant to section 2.2 or in exchange for the
Exchangeable Shares, and, if possible, the subsequent resale
of such Apta Shares on the Bulletin Board.
3.13 Inside Information. The Parties agree that this
Agreement and the information disclosed or to be disclosed
hereunder shall be deemed non-public information, as defined
under Regulation FD under U.S. Securities Law, and each of
the Parties hereby agrees to maintain such information in
confidence as required by Regulation FD. Any Party or
Person having access to this Agreement or the information
disclosed or to be disclosed hereunder shall be deemed to
have material inside information, and buying, selling or
trading in Apta's stock by such Parties or Persons may
constitute a violation of U.S. Securities Law.
3.14 Filings. Each Party shall, on or before the Closing
Date, make all such filings as may be required to be made by
it under any applicable laws or regulations in order to
consummate the transactions contemplated in this Agreement.
Each Party agrees to co-operate with the other Parties with
respect to all such filings, including providing all
information about the Party that such other Parties may
require for such filings.
3.15 Canadian Approvals
.. The Company and Apta each shall use Best Efforts to file
all notices and information required (if any) under (i) the
Investment Canada Act (Canada) and (ii) the Competition Act
(Canada).
3.16 Survival of Covenants. The covenants made in this
sections 3.5, 3.6, 3,12, 3.13, 3.14 and 3.15 above shall
survive the Closing for a period of one (1) year from the
Closing Date, after which time, if no claim shall have been
made against a Party with respect to any default or breach
of any such covenant, that Party shall have no further
liability under this Agreement with respect to that
covenant.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Depositary and
the Vendors. Each Vendor hereby represents and warrants
to Exchangeco and Apta as follows as of the Closing Date,
and acknowledges that Exchangeco and Apta are relying on
these representations and warranties in entering into this
Agreement and performing their obligations under the same:
(a) Capacity and Authority- The Vendor has full power,
right and authority to own the Shares, enter into this
Agreement and to perform his obligations under it. If an
individual, the Vendor has attained the age of majority. If
not an individual, the Vendor has been duly formed and is
validly existing under the laws of its jurisdiction of
incorporation, and execution and delivery of this Agreement
and the Vendor's performance of its obligations hereunder
have been duly authorized by all necessary proceedings of
the directors, shareholders, trustees, beneficiaries,
partners or members of the Vendor, and the individual
signing this Agreement on behalf of the Vendor has the
authority to do so and to bind the Vendor by his signature.
(b) Power of Attorney - The Depositary has been duly
appointed by all of the shareholders of the Company as their
attorney for the sale of the Shares with full power and
authority to enter into this Agreement on such shareholders'
behalf and to sell such shareholders' Shares on the terms
set out herein.
(c) Title to Shares - The Vendor is the sole legal and
beneficial owner of the Shares set out opposite his name in
Schedule "A" hereto with good and marketable title thereto,
free and clear of any Encumbrances other than Permitted
Encumbrances.
(d) No Option - Except as set out in this Agreement, no
Person has any agreement, warrant, option or right, or a
right capable of becoming an agreement for, the purchase of
the Vendor's Shares.
(e) Absence of Conflict - The Vendor is not a party to,
bound or affected by any agreement which would be violated,
breached or terminated by, or which would result in creation
or imposition of any Encumbrance upon any of the Shares as a
consequence of the execution and delivery of this Agreement
or the consummation of the transactions contemplated in this
Agreement. The consummation of transactions contemplated
herein do not and will not conflict with, or result in a
breach of, or constitute a default under the terms or
conditions of any Constating Documents of the Vendor (if not
an individual), any court or administrative order or
process, any agreement or instrument to which the Vendor is
party or by which it is bound.
(f) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of the Vendor or the Company, in
connection with the execution, delivery and performance of
this Agreement and the performance of the Vendor's
obligations under this Agreement.
(g) Residence - Each Vendor is a resident, within the
meaning of the Tax Act, of the jurisdiction set out under
his name in Schedule "A" hereto.
(h) Binding Agreement - This Agreement constitutes a legal,
valid and binding obligation of the Vendor enforceable
against the Vendor in accordance with its terms except as
may be limited by laws of general application affecting the
rights of creditors.
(i) Bankruptcy / Liquidation - No proceedings have been
taken, are pending or have been authorized, and no receiver
or trustee has been appointed for the Vendor by the Vendor
or by any other person in respect to the bankruptcy,
insolvency, liquidation, dissolution or winding up of the
Vendor.
(j) Litigation - There are no judgements, decrees,
injunctions, rulings or orders of any court, arbitrator,
federal, provincial, state, municipal or other governmental
authority, department, commission, board, bureau or agency,
or any actions, suits, grievances or proceedings (whether or
not on behalf of the Vendor) commenced, pending or
threatened against or relating to the Vendor which may
result in the imposition of a Encumbrance on the Shares or
which may prevent, delay, make illegal or otherwise
interfere with the consummation of the transactions
contemplated in this Agreement.
(k) Accredited Investor - If a resident of the United
States of America, the Vendor is an accredited investor
within the meaning of Regulation D under the U.S. Securities
Law.
(l) Representations and Warranties of the Company - The
representations and warranties of the Company set out in
section 4.2 below are true and accurate.
4.2 Representations and Warranties of the Company. The
Company represents and warrants to Exchangeco and Apta as
follows as of the Closing Date and acknowledges that
Exchangeco and Apta are relying on these representations and
warranties in entering into this Agreement and performing
their obligations under the same:
(a) Due Incorporation - The Company is a corporation duly
incorporated and validly existing under the laws of Canada
and will on the Closing Date be in good standing with
respect to the filing of annual reports.
(b) Due Authorization - The execution and delivery of this
Agreement and the completion of the transaction contemplated
herein has been duly and validly authorized by all necessary
corporate action on the part of the Company.
(c) Capacity - The Company has the power and capacity and
good and sufficient right and authority to enter into this
Agreement on the terms and conditions herein set forth, to
perform its obligations under this Agreement.
(d) Binding Agreement - This Agreement constitutes a legal,
valid and binding obligation of the Company and the Vendors
enforceable against the Company and the Vendors in
accordance with its terms except as may be limited by laws
of general application affecting the rights of creditors.
(e) Absence of Conflict - Except for the agreements with
the Compaq group of companies set out in Schedule "H" hereto
and as set out in subsection 4.2(aa) below, the Company is
not a party to, bound or affected by any agreement which
would be violated, breached or terminated by, or which would
result in creation or imposition of any Encumbrance upon any
of the Shares or assets of the Company as a consequence of
the execution and delivery of this Agreement or the
consummation of the transactions contemplated in this
Agreement. The consummation of transactions contemplated
herein do not and will not conflict with, or result in a
breach of, or constitute a default under the terms or
conditions of any Constating Documents of the Company, any
court or administrative order or process, any agreement or
instrument to which the Company is party or by which it is
bound.
(f) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of the Company in connection with the
execution, delivery and performance of this Agreement and
the performance of the Company's obligations under this
Agreement.
(g) Share Capital - The authorized capital of the Company
consists of an unlimited number of common shares and an
unlimited number of preference shares without par value
issuable in series of which 200 are designated as Series 1
of which there will be at Closing no more than 25,000,000
common shares and 117.7 preference shares issued and
outstanding.
(h) Shareholders - Schedule "A" hereto contains a complete
and accurate list of each registered holder of issued and
outstanding Shares and sets out the residence or principal
place of business of each holder. The Vendors are the sole
registered holders and beneficial owners of all of the
issued and outstanding common shares of the Company in the
amounts set out in Schedule "A" hereto.
(i) No Encumbrances - The Shares are free and clear of all
Encumbrances other than Permitted Encumbrances.
(j) Shares Validly Issued - The Shares have been validly
issued and are outstanding as fully paid and non-assessable.
(k) No Options - Except as set out in this Agreement, no
Person has any agreement, warrant, option or right, or a
right capable of becoming an agreement:
(i) for the purchase of the Shares;
(ii) to require the Company to issue any further or other
shares in its capital or to convert or exchange any
securities into or for shares in the capital of the Company;
(iii) for the purchase, subscription, allotment or
issuance of any of the unissued shares in the capital of the
Company; or
(iv) to require the Company to purchase, redeem or otherwise
acquire any of the issued and outstanding shares in the
capital of the Company.
(l) No Breach - To the best of its knowledge, the Company
is not in breach or violation of any laws, ordinances,
statutes, regulations, by-laws, judgments, orders or decrees
to which it is subject or which apply to it or of any
patents, copyrights, trade-marks or licenses held by any
other Person.
(m) Permits - To the best of its knowledge, the Company has
obtained all permits, certificates, approvals, registrations
and licenses which are required for the operation of the
Business as it is presently being conducted, and no
violations thereof have been experienced, noted, or
recorded, and no proceeding is pending or threatened to
revoke or limit any of them.
(n) Subsidiaries - The following table sets out the
subsidiaries of the Company and the Company's interest in
them:
Name of Subsidiary Percentage of Issued and
Outstanding Common Shares
Owned
Cynaptec Information 100%(1)
Systems Inc.
InteliSys Aviation 53.125%
Systems Inc.
(1) Does not include 250 Class A Preferred
Shares.
Cynaptec Information Systems Inc. owns the remaining
46.875% of InteliSys Aviation Systems Inc. Except as
set out above, the Company does not own, directly or
indirectly, any shares or interest in any other Person.
(o) Constating Documents - The Constating Documents of the
Company have not been altered since the incorporation of the
Company except as disclosed in the minute books of the
Company.
(p) Corporate Records - All material transactions of the
Company have been promptly and properly recorded or filed in
or with its respective books and records, and the minute
books of the Company contain all records of the meetings and
proceedings of shareholders and directors thereof.
(q) Financial Statements - The Company's Financial
Statements are substantially true and correct in every
material respect and present fairly the financial position
of the Company and the results of its operations for the
periods then ended, in accordance with U.S. GAAP applied on
a consistent basis.
(r) No Material Changes - Since the end of the period
reported on in the Company's Financial Statements, the
Company has carried on its business in the Ordinary Course
of Business and there have been no Material Adverse Changes.
(s) Business in the Ordinary Course - Since the end of the
period reported on in the Company's Financial Statements,
the Company has conducted the Business in the ordinary
course and has maintained the Assets in good condition,
repair and working order and suitable in all respects for
the use to which they are intended.
(t) No Dividends - No dividends or other distribution on
any shares in the capital of the Company have been made,
declared or authorized.
(u) Bankruptcy / Liquidation - No proceedings have been
taken, are pending or have been authorized, and no receiver
or trustee has been appointed for the Company by the Company
or by any other person in respect to the bankruptcy,
insolvency, liquidation, dissolution or winding up of the
Company.
(v) Litigation - There are no judgements, decrees,
injunctions, rulings or orders of any court, arbitrator,
federal, provincial, state, municipal or other governmental
authority, department, commission, board, bureau or agency,
or any actions, suits, grievances or proceedings (whether or
not on behalf of the Company) commenced, pending or
threatened against or relating to the Company which may
result in the imposition of a Encumbrance on the Shares,
impose material liabilities on the Company, or which may
prevent, delay, make illegal or otherwise interfere with the
consummation of the transactions contemplated in this
Agreement.
(w) Assets - The Company has no Assets, including but not
limited to real estate, except as set out in Schedule "E"
hereto and the Company's Financial Statements. The Company
has good and marketable title or rights to and possession of
all such Assets free and clear of all Encumbrances, except
the Permitted Encumbrances.
(x) Indebtedness - There is no Indebtedness of the Company
which is not disclosed or reflected in the Company's
Financial Statements or Schedule "F" hereto, except that
incurred in the Ordinary Course of Business since the end of
the period reported on in the Company's Financial
Statements. The Company has not guaranteed, or agreed to
guarantee, any debt, liability or other obligation of any
Person.
(y) Indebtedness to Directors etc. - The Company is not
indebted nor under obligation to the directors, officers,
employees or affiliates of the Company, and specifically the
Company is not liable to pay any outstanding salaries or
wages, except in the Ordinary Course of Business, and except
as disclosed in the Company's Financial Statements or
Schedule "F" hereto.
(z) Indebtedness of Directors etc. - No officer, director
or employee of the Company is indebted or under obligation
to the Company on any account whatsoever except as disclosed
in the Company's Financial Statements or Schedule "F"
hereto.
(aa) Material Contracts - Set out in Schedule "H" is a true
and correct listing of the valid and outstanding material
contracts of the Company. All of the material contracts set
out in Schedule "H" have been approved by the Board of
Directors of the Company and except as disclosed to Apta and
the Principals by the Company prior to the date hereof, the
Company is not in material breach of any of the terms,
conditions, covenants or provisions of, is in default
under, or has done or omitted to do anything which, with the
giving of notice or lapse of time or both, would constitute
a breach of or default under any Contract.
(bb) Taxes - All tax returns, filings and reports of the
Company required by law to be filed prior to the date
hereof, all returns and filings pertaining to compensation
of employees of the Company for job-related injuries
required and any other tax returns applicable to the Company
have been filed and are true, complete and correct. The
Company is not now and at the Closing Date will not be in
arrears or in default in respect of the filing of any
required federal, state, provincial or municipal tax or
other return, and to the best of the Company's knowledge,
no such return contains any mis-statement or conceals any
statement that should have been included therein. The
Company has withheld and remitted all amounts required to be
remitted to the applicable tax collecting authority
respecting payments to employees or to non-residents or
otherwise. All taxes and other government charges,
including all income, excise, sales, business and property
taxes and other rates, charges, assessment, levies, duties,
taxes, contributions, fees and licences required to be paid
have been paid, and if not required to be paid as at the
date hereof, have been accrued in the Company's Financial
Statements. Adequate provision has been made for taxes
payable by the Company for which tax returns are not yet
required to be filed and there are no agreements, waivers or
other arrangements providing for an extension of time with
respect to the filing of any tax return by the Company or
the payment of any tax, governmental charge or deficiency by
the Company. There are no contingent tax liabilities or any
grounds which would prompt a re-assessment of any taxes paid
or tax returns filed by the Company.
4.3 Representations and Warranties of Apta. Apta
represents and warrants to the Company and the Depositary
as follows as of the Closing Date and acknowledges that the
Company and the Depositary are relying on these
representations and warranties in entering into this
Agreement and performing their obligations under the same:
(a) Due Incorporation - Apta is a corporation duly
incorporated and validly existing under the laws of the
State of Delaware and will on the Closing Date be in good
standing with respect to the filing of annual reports.
(b) Due Authorization - The execution and delivery of this
Agreement and the completion of the transaction contemplated
herein has been duly and validly authorized by all necessary
corporate action on the part of Apta.
(c) Capacity - Apta has the power and capacity and good and
sufficient right and authority to enter into this Agreement
on the terms and conditions herein set forth, to perform its
obligations under this Agreement.
(d) Binding Agreement - This Agreement constitutes a legal,
valid and binding obligation of Apta and the Vendors
enforceable against Apta and the Vendors in accordance with
its terms except as may be limited by laws of general
application affecting the rights of creditors.
(e) Absence of Conflict - Apta is not a party to, bound or
affected by any agreement which would be violated, breached
or terminated by, or which would result in creation or
imposition of any Encumbrance upon any of the Shares or
assets of Apta as a consequence of the execution and
delivery of this Agreement or the consummation of the
transactions contemplated in this Agreement. The
consummation of transactions contemplated herein do not and
will not conflict with, or result in a breach of, or
constitute a default under the terms or conditions of any
Constating Documents of Apta, any court or administrative
order or process, any agreement or instrument to which Apta
is party or by which it is bound.
(f) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of Apta in connection with the
execution, delivery and performance of this Agreement and
the performance of Apta's obligations under this Agreement.
(g) Reporting Issuer Status - Apta is a reporting company
in the United States under U.S. Securities Law, but is not a
"reporting issuer" in any province of territory of Canada,
as that term is defined in Canadian Securities Law (the
foregoing state of affairs being hereinafter known as the
"Reporting Issuer Status").
(h) Listing Status - The common shares of Apta are quoted
for trading on the Bulletin Board under the symbol "APTA".
Apta is in good standing with the Bulletin Board and is not
in default under any of its rules, policies or by-laws (the
foregoing state of affairs being hereinafter known as the
"Listing Status").
(i) Share Capital - As of the Closing Date the authorized
share capital of Apta shall consist of at least 50,000,000
common shares of par value $0.001 per share and at least
1,000 preference shares issuable in series of which no more
than 3,000,000 common shares and one Series "A" preference
share having the rights, privileges and restrictions
specified for the Special Voting Share shall be issued and
outstanding as of the Closing Date.
(j) Apta Shares - The Apta Shares to be issued to the Group
A Vendors at Closing and to the Group B Vendors in exchange
for the Exchangeable Shares will be validly issued as fully-
paid and non-assessable.
(k) No Options - Except as set out in this Agreement, no
Person has any agreement, warrant, option or right, or a
right capable of becoming an agreement:
(i) for the purchase of the shares of Apta;
(ii) to require Apta to issue any further or other
shares in its capital or to convert or exchange
any securities into or for shares in the capital
of Apta;
(iii) for the purchase, subscription, allotment or
issuance of any of the unissued shares in the
capital of Apta; or
(iv) to require Apta to purchase, redeem or otherwise
acquire any of the issued and outstanding shares
in the capital of Apta.
(l) No Breach - To the best of its knowledge, Apta is not
in breach or violation of any laws, ordinances, statutes,
regulations, by-laws, judgments, orders or decrees to which
it is subject or which apply to it or of any patents,
copyrights, trade-marks or licenses held by any other
Person.
(m) Permits - To the best of its knowledge, Apta has
obtained all permits, certificates, approvals, registrations
and licenses which are required for the operation of the
business presently being carried on by it, and no violations
thereof have been experienced, noted, or recorded, and no
proceeding is pending or threatened to revoke or limit any
of them.
(n) Subsidiaries - The following table sets out the
subsidiaries of Apta and Apta's interest in them:
Name of Subsidiary Percentage of Issued
and Outstanding Shares
Owned
Beran Corp. 80%
InteliSys Acquisition 100%
Inc.
InteliSys (Nova Scotia) 100%
Company
Except as set out above, Apta does not own, directly or
indirectly, any shares or interest in any other Person.
(o) Constating Documents - The Constating Documents of Apta
have not been altered since the incorporation of Apta except
as disclosed in the minute books of Apta.
(p) Corporate Records - All material transactions of Apta
have been promptly and properly recorded or filed in or with
its respective books and records, and the minute books of
Apta contain all records of the meetings and proceedings of
shareholders and directors thereof.
(q) Financial Statements - Apta's Financial Statements are
substantially true and correct in every material respect and
present fairly the financial position of Apta and the
results of its operations for the periods then ended, in
accordance with U.S. GAAP applied on a consistent basis.
(r) No Material Changes - Since the end of the period
reported on in Apta's Financial Statements, Apta has carried
on its business in the Ordinary Course of Business and there
have been no Material Adverse Changes.
(s) Business in the Ordinary Course - Since the end of the
period reported on in Apta's Financial Statements, Apta has
conducted the Business in the ordinary course and has
maintained the Assets in good condition, repair and working
order and suitable in all respects for the use to which they
are intended.
(t) No Dividends - No dividends or other distribution on
any shares in the capital of Apta have been made, declared
or authorized, except as disclosed by Apta under the U.S.
Securities Laws.
(u) Bankruptcy / Liquidation - No proceedings have been
taken, are pending or have been authorized, and no receiver
or trustee has been appointed for Apta by Apta or by any
other person in respect to the bankruptcy, insolvency,
liquidation, dissolution or winding up of Apta.
(v) Litigation - There are no judgements, decrees,
injunctions, rulings or orders of any court, arbitrator,
federal, provincial, state, municipal or other governmental
authority, department, commission, board, bureau or agency,
or any actions, suits, grievances or proceedings (whether or
not on behalf of Apta) commenced, pending or threatened
against or relating to Apta which may result in the
imposition of a Encumbrance on the Apta Shares, impose
material liabilities on Apta, or which may prevent, delay,
make illegal or otherwise interfere with the consummation of
the transactions contemplated in this Agreement.
(w) Assets - Apta has no Assets, including but not limited
to real estate, except as set out in Schedule "K" hereto and
Apta's Financial Statements. Apta has good and marketable
title or rights to and possession of all such Assets free
and clear of all Encumbrances, except the Permitted
Encumbrances.
(x) Indebtedness - There is no Indebtedness of Apta which
is not disclosed or reflected in Apta's Financial Statements
or Schedule "L" hereto, except that incurred in the Ordinary
Course of Business since the end of the period reported on
in Apta's Financial Statements. Apta has not guaranteed, or
agreed to guarantee, any debt, liability or other obligation
of any Person.
(y) Indebtedness to Directors etc. - Apta is not indebted
nor under obligation to the directors, officers, employees
or affiliates of Apta, and specifically Apta is not liable
to pay any outstanding salaries or wages, except in the
Ordinary Course of Business, and except as disclosed in
Apta's Financial Statements or Schedule "L" hereto.
(z) Indebtedness of Directors etc. - No officer, director
or employee of Apta is indebted or under obligation to Apta
on any account whatsoever.
(aa) Material Contracts - Set out in Schedule "N" is a true
and correct listing of the valid and outstanding material
contracts of Apta. All of the material contracts set out in
Schedule "N" have been approved by the Board of Directors of
Apta and Apta is not in material breach of any of the terms,
conditions, covenants or provisions of, is in default
under, or has done or omitted to do anything which, with the
giving of notice or lapse of time or both, would constitute
a breach of or default under any Contract.
(bb) Employees - The name of each present employee of Apta
under written employment contract with Apta, the duration of
the employment of each such employee with Apta and the
remuneration, benefit obligations of Apta, and accrued
vacation pay in respect of each such employee is accurately
detailed in the employment agreements set out in Schedule
"O", and the full amounts of salaries, pensions, bonuses,
commissions and other remuneration of any nature, including
revenues pay and unpaid earned wages of the present or
former officers, directors, employees, salesmen, consultants
and agents of Apta, as of the Closing Date, will have been
paid up to the most recent pay day.
(cc) Remuneration and Benefit Plans - Since the end of the
period reported on in Apta's Financial Statements, Apta has
not increased the pay of or paid or agreed to pay any
pension, bonus, share of profits or other similar benefit to
or for the benefit of any agent, employee, director or
officer of Apta. Apta does not have any contracts, pension
plans, profit sharing plans, bonus plans, undertakings, or
arrangements whether oral, written or implied with lessees,
licensees, managers, accountants, suppliers, agents,
distributors, officers, directors, lawyers, or others which
cannot be terminated on not more than one (1) month's
notice. There are no pension, profit sharing, incentive,
bonus or similar plans or other compensation plans affecting
Apta and Apta has no unfunded or unpaid liability in respect
of any such plans except for the monthly remittances paid in
respect of Employment Insurance, Canada Pension Plan, and
Workers' Compensation.
(dd) Taxes - All tax returns, filings and reports of Apta
required by law to be filed prior to the date hereof, all
returns and filings pertaining to compensation of employees
of Apta for job-related injuries required and any other tax
returns applicable to Apta have been filed and are true,
complete and correct. Apta is not now and at the Closing
Date will not be in arrears or in default in respect of the
filing of any required federal, state, provincial or
municipal tax or other return, and to the best of Apta's
knowledge, no such return contains any mis-statement or
conceals any statement that should have been included
therein. Apta has withheld and remitted all amounts required
to be remitted to the applicable tax collecting authority
respecting payments to employees or to non-residents or
otherwise. All taxes and other government charges,
including all income, excise, sales, business and property
taxes and other rates, charges, assessment, levies, duties,
taxes, contributions, fees and licences required to be paid
have been paid, and if not required to be paid as at the
date hereof, have been accrued in Apta's Financial
Statements. Adequate provision has been made for taxes
payable by Apta for which tax returns are not yet required
to be filed and there are no agreements, waivers or other
arrangements providing for an extension of time with respect
to the filing of any tax return by Apta or the payment of
any tax, governmental charge or deficiency by Apta. There
are no contingent tax liabilities or any grounds which would
prompt a re-assessment of any taxes paid or tax returns
filed by Apta.
(ee) Representations and Warranties of Subsidiaries - The
representations and warranties of Exchangeco and
NovaScotiaco set out in sections 4.4 and 4.5 below are true
and accurate.
4.4 Representations and Warranties of Exchangeco.
Exchangeco represents and warrants to the Company and the
Depositary as follows as of the Closing Date and
acknowledges that the Company and the Depositary are relying
on these representations and warranties in entering into
this Agreement and performing their obligations under the
same:
(a) Due Incorporation - Exchangeco is a corporation duly
incorporated and validly existing under the laws of the
Province of New Brunswick..
(b) Capacity to Enter Agreement - Exchangeco has all
necessary power, authority and capacity to enter into this
Agreement and perform its obligations hereunder.
(c) Due Corporate Authorization - Exchangeco's execution
and delivery of this Agreement and its performance of its
obligations hereunder have been duly authorized by all
necessary proceedings of the directors and shareholders of
Exchangeco.
(d) Binding Obligation - This Agreement has been duly
executed and delivered by Exchangeco and constitutes a valid
and binding obligation on its part.
(e) Share Capital - The authorized share capital of
Exchangeco consists of an unlimited number of common shares,
and an unlimited number of Exchangeable Shares, of which 100
common shares and no Exchangeable Shares are currently
issued and outstanding.
(f) Subsidiary Status - Apta owns all of the issued and
outstanding common shares of Exchangeco.
(g) Due Issuance - The Exchangeable Shares will be validly
issued to the Vendors at Closing as fully-paid and non-
assessable.
(h) No Options - Except as set out in this Agreement, no
Person has any agreement, warrant, option or any right
capable of becoming an agreement, warrant, option or right
for the purchase of any of further shares of Exchangeco or
securities convertible into shares of Exchangeco.
(i) Absence of Conflict - Exchangeco is not a party to,
bound or affected by any agreement which would be violated,
breached or terminated by, or which would result in creation
or imposition of any Encumbrance upon any of the
Exchangeable Shares as a consequence of the execution and
delivery of this Agreement or the consummation of the
transactions contemplated in this Agreement. Exchangeco's
execution of this Agreement and the consummation of
transactions contemplated herein do not and will not
conflict with, or result in a breach of, or constitute a
default under the terms or conditions of any Constating
Documents Exchangeco, any court or administrative order or
process, any agreement or instrument to which Exchangeco is
party or by which it is bound.
(j) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of Exchangeco in connection with the
execution, delivery and performance of this Agreement and
the performance of Exchangeco's obligations under this
Agreement.
(k) No Litigation - Exchangeco is not aware of, there is no
basis for and there are no actions, suits, judgments,
investigations or proceedings outstanding or pending or to
the knowledge of Exchangeco threatened against or affecting
Exchangeco at law or in equity or before or by any court or
federal, provincial, state, municipal or other governmental
authority, department, commission, board, bureau or agency.
(l) No Bankruptcy - No proceedings have been taken, are
pending or authorized by Exchangeco or by any other person
in respect to the bankruptcy, insolvency, liquidation,
dissolution or winding up of Exchangeco.
(m) Taxes - All tax returns, filings and reports of
Exchangeco required by law to be filed prior to the date
hereof, all returns and filings pertaining to compensation
of employees of Exchangeco for job-related injuries required
and any other tax returns applicable to Exchangeco have been
filed and are true, complete and correct. Exchangeco is not
now and at the Closing Date will not be in arrears or in
default in respect of the filing of any required federal,
state, provincial or municipal tax or other return, and to
the best of Exchangeco's knowledge, no such return contains
any mis-statement or conceals any statement that should have
been included therein. Exchangeco has withheld and remitted
all amounts required to be remitted to the applicable tax
collecting authority respecting payments to employees or to
non-residents or otherwise. All taxes and other government
charges, including all income, excise, sales, business and
property taxes and other rates, charges, assessment, levies,
duties, taxes, contributions, fees and licences required to
be paid have been paid, and if not required to be paid as at
the date hereof, have been accrued in Exchangeco's Financial
Statements. Adequate provision has been made for taxes
payable by Exchangeco for which tax returns are not yet
required to be filed and there are no agreements, waivers or
other arrangements providing for an extension of time with
respect to the filing of any tax return by Exchangeco or the
payment of any tax, governmental charge or deficiency by
Exchangeco. There are no contingent tax liabilities or any
grounds which would prompt a re-assessment of any taxes paid
or tax returns filed by Exchangeco.
4.5 Representations and Warranties of Novascotiaco.
Novascotiaco represents and warrants to the Company and the
Depositary as follows as of the Closing Date and
acknowledges that the Company and the Depositary are relying
on these representations and warranties in entering into
this Agreement and performing their obligations under the
same:
(n) Due Incorporation - Novascotiaco is an unlimited
liability company duly formed and validly existing under the
laws of the Province of Nova Scotia.
(o) Capacity to Enter Agreement - Novascotiaco has all
necessary power, authority and capacity to enter into this
Agreement and perform its obligations hereunder.
(p) Due Corporate Authorization - Novascotiaco's execution
and delivery of this Agreement and its performance of its
obligations hereunder have been duly authorized by all
necessary proceedings of the directors and shareholders of
Novascotiaco.
(q) Binding Obligation - This Agreement has been duly
executed and delivered by Novascotiaco and constitutes a
valid and binding obligation on its part.
(r) Share Capital - The authorized share capital of
Novascotiaco consists of an unlimited number of common
shares, of which 100 common shares are currently issued and
outstanding.
(s) Subsidiary Status - Apta owns all of the issued and
outstanding common shares of Novascotiaco.
(t) No Options - Except as set out in this Agreement, no
Person has any agreement, warrant, option or any right
capable of becoming an agreement, warrant, option or right
for the purchase of any of further shares of Novascotiaco or
securities convertible into shares of Novascotiaco.
(u) Absence of Conflict - Novascotiaco is not a party to,
bound or affected by any agreement which would be violated,
breached or terminated by, or which would result in creation
or imposition of any Encumbrance upon any of the
Exchangeable Shares as a consequence of the execution and
delivery of this Agreement or the consummation of the
transactions contemplated in this Agreement. Novascotiaco's
execution of this Agreement and the consummation of
transactions contemplated herein do not and will not
conflict with, or result in a breach of, or constitute a
default under the terms or conditions of any Constating
Documents Novascotiaco, any court or administrative order or
process, any agreement or instrument to which Novascotiaco
is party or by which it is bound.
(v) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of Novascotiaco in connection with the
execution, delivery and performance of this Agreement and
the performance of Novascotiaco's obligations under this
Agreement.
(w) No Litigation - Novascotiaco is not aware of, there is
no basis for and there are no actions, suits, judgments,
investigations or proceedings outstanding or pending or to
the knowledge of Novascotiaco threatened against or
affecting Novascotiaco at law or in equity or before or by
any court or federal, provincial, state, municipal or other
governmental authority, department, commission, board,
bureau or agency.
(x) No Bankruptcy - No proceedings have been taken, are
pending or authorized by Novascotiaco or by any other person
in respect to the bankruptcy, insolvency, liquidation,
dissolution or winding up of Novascotiaco.
(y) Taxes - All tax returns, filings and reports of
Novascotiaco required by law to be filed prior to the date
hereof, all returns and filings pertaining to compensation
of employees of Novascotiaco for job-related injuries
required and any other tax returns applicable to
Novascotiaco have been filed and are true, complete and
correct. Novascotiaco is not now and at the Closing Date
will not be in arrears or in default in respect of the
filing of any required federal, state, provincial or
municipal tax or other return, and to the best of
Novascotiaco's knowledge, no such return contains any mis-
statement or conceals any statement that should have been
included therein. Novascotiaco has withheld and remitted all
amounts required to be remitted to the applicable tax
collecting authority respecting payments to employees or to
non-residents or otherwise. All taxes and other government
charges, including all income, excise, sales, business and
property taxes and other rates, charges, assessment, levies,
duties, taxes, contributions, fees and licences required to
be paid have been paid, and if not required to be paid as at
the date hereof, have been accrued in Novascotiaco's
Financial Statements. Adequate provision has been made for
taxes payable by Novascotiaco for which tax returns are not
yet required to be filed and there are no agreements,
waivers or other arrangements providing for an extension of
time with respect to the filing of any tax return by
Novascotiaco or the payment of any tax, governmental charge
or deficiency by Novascotiaco. There are no contingent tax
liabilities or any grounds which would prompt a re-
assessment of any taxes paid or tax returns filed by
Novascotiaco.
4.6 Representations and Warranties of the Principals.
Each Principal hereby represents and warrants to the Company
and the Vendors as follows as of the Closing Date, and
acknowledges that the Company and the Vendors are relying on
these representations and warranties in entering into this
Agreement and performing their obligations under the same:
(a) Capacity and Authority- The Principal has full power,
right and authority to enter into this Agreement and to
perform his obligations under it. If an individual, the
Principal has attained the age of majority. If not an
individual, the Principal has been duly formed and is
validly existing under the laws of its jurisdiction of
incorporation, and execution and delivery of this Agreement
and the Principal's performance of its obligations hereunder
have been duly authorized by all necessary proceedings of
the directors, shareholders, trustees, beneficiaries,
partners or members of the Principal, and the individual
signing this Agreement on behalf of the Principal has the
authority to do so and to bind the Principal by his
signature.
(b) Absence of Conflict - The Principal is not a party to,
bound or affected by any agreement which would be violated,
breached or terminated by, or as a consequence of the
execution and delivery of this Agreement or the consummation
of the transactions contemplated in this Agreement. The
consummation of transactions contemplated herein do not and
will not conflict with, or result in a breach of, or
constitute a default under the terms or conditions of any
Constating Documents of the Principal (if not an
individual), any court or administrative order or process,
any agreement or instrument to which the Principal is party
or by which it is bound.
(c) Regulatory Approvals - No governmental or regulatory
authorization, approval, order, consent or filing is
required on the part of the Principal or the Company, in
connection with the execution, delivery and performance of
this Agreement and the performance of the Principal's
obligations under this Agreement.
(d) Binding Agreement - This Agreement constitutes a legal,
valid and binding obligation of the Principal enforceable
against the Principal in accordance with its terms except as
may be limited by laws of general application affecting the
rights of creditors.
(e) Bankruptcy / Liquidation - No proceedings have been
taken, are pending or have been authorized, and no receiver
or trustee has been appointed for the Principal by the
Principal or by any other person in respect to the
bankruptcy, insolvency, liquidation, dissolution or winding
up of the Principal.
(f) Litigation - There are no judgements, decrees,
injunctions, rulings or orders of any court, arbitrator,
federal, provincial, state, municipal or other governmental
authority, department, commission, board, bureau or agency,
or any actions, suits, grievances or proceedings (whether or
not on behalf of the Principal) commenced, pending or
threatened against or relating to the Principal which may
result in the imposition of a Encumbrance on the Shares or
which may prevent, delay, make illegal or otherwise
interfere with the consummation of the transactions
contemplated in this Agreement.
(g) Representations and Warranties of Apta - The
representations and warranties of Apta, Exchangeco and
NovaScotiaco set out in sections 4.3, 4.4 and 4.5 above are
true and accurate.
4.7 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement
shall survive the Closing for a period of one (1) year from
the Closing Date, after which time, if no claim shall have
been made against a Party with respect to any incorrectness
in or breach of any representation or warranty, that Party
shall have no further liability under this Agreement with
respect to that representation or warranty.
4.8 Certificates and Instruments Included. All statements
contained in any certificate or any instrument delivered by
or on behalf of a Party pursuant to or in connection with
the transactions contemplated by this Agreement shall be
deemed to be made by such Party under this Agreement.
ARTICLE 5 - CLOSING MATTERS
5.1 Date, Time and Place of Closing. The Closing shall
take place at the Closing Time on the Closing Date at 10:00
a.m., or at such other place as the Parties may agree on.
If the transactions contemplated herein do not close by
December 31, 2002, then this Agreement shall be terminated
unless the Parties mutually agree to extend the Closing
Date. Provided, however, if all of the conditions to
closing have been met, other than the governmental approvals
required by Paragraphs 5.2(d) and 5.3(d), Consents,
Authorizations and Registrations, the Closing Date shall be
automatically extended until such time as such approvals
have been obtained. If the Closing Date is so extended,
December 31, 2002 shall be deemed the Effective Date of this
Agreement.
5.2 Conditions for Apta's, Exchangeco's and NovaScotiaco's
Benefit. Apta, Exchangeco and NovaScotiaco shall not be
obliged to complete the purchase of the Shares or the
issuance of the Apta Shares and Exchangeable Shares unless
each of the following conditions shall have been satisfied
on or before the Closing Date:
(a) Accuracy of Representations - The representations and
warranties of the Vendors and the Company set forth in
sections 4.1 and 4.2 above shall be true and correct as of
the Closing Date, except as those representations and
warranties may be affected by the occurrence of events or
transactions expressly contemplated and permitted by this
Agreement, including, without limitation, those in the
ordinary course of business, and Apta, Exchangeco and
NovaScotiaco shall have received certificates from each of
the Depositary and the Company confirming the foregoing.
(b) Performance of Obligations - The Depositary and the
Company shall have performed all of the obligations
hereunder to be performed by them at or prior to the
Closing, and shall not be in breach of any provision of this
Agreement.
(c) Deliveries -The Depositary shall have delivered or
caused to be delivered to the direction of Exchangeco and/or
NovaScotiaco (as provided in section 2.2. above) possession
of the Shares free and clear of any Encumbrances, other than
Permitted Encumbrances, together with all endorsements and
documents required to authorize or give effect to said
transfer. The Company shall have delivered or caused to be
delivered to Apta, Exchangeco and NovaScotiaco all items
required to be delivered by it at Closing under section 5.4
below.
(d) Consents, Authorizations and Registrations - All
consents, approvals, orders and authorizations of, from or
notifications to any Persons or Governmental Authorities
required (if any) in connection with the completion of any
of the transactions contemplated by this Agreement, the
execution of this Agreement, the Closing or the performance
of any of the terms and conditions of this Agreement shall
have been obtained on or before the Closing Date.
(e) No Claims - There shall be no injunction or order
issued preventing, and no pending or threatened claim,
action, litigation or proceeding, judicial or
administrative, or investigation against any Party by any
Governmental Authority or Person for the purpose of
enjoining or preventing the consummation of this Agreement,
or otherwise claiming that this Agreement or the
consummation thereof is improper or would give rise to
proceedings under any statute or rule of law.
(f) No Material Changes - There shall have been no Material
Adverse Change in the business, assets, liabilities,
prospects, operations of the Company, and the Company shall
not have sold or pledged any assets, issued any shares or
entered into any transactions outside the Ordinary Course of
Business.
(g) Opinion - Counsel for the Company shall have delivered
an opinion addressed to Apta, Exchangeco and NovaScotiaco in
form, content and scope satisfactory to Apta's counsel, with
respect to: the incorporation and existence of the Company;
the authorized and issued capital of the Company; the due
authorization, execution and delivery of this Agreement by
the Company; the validity and due authorization of the
transfer of the Shares to Exchangeco and/or NovaScotiaco (as
provided in section 2.2. above), the compliance with
Canadian Securities Law of the issuance of Exchangeable
Shares and/or Apta Shares to the Vendors pursuant to the
transactions contemplated in this Agreement; and such other
matters as counsel to Apta may reasonably request.
If any one or more of the foregoing conditions shall not
have been fulfilled on or before the Closing Date, any one
of Apta, Exchangeco or NovaScotiaco may terminate this
Agreement by notice in writing to the other Parties in which
event Apta, Exchangeco and NovaScotiaco shall be released
from all obligations under this Agreement and (unless
Exchangeco can show that the condition relied upon could
reasonably have been performed by the other parties) the
other Parties shall also be released from all obligations
hereunder; provided, however, that the Party terminating
this Agreement shall be entitled to waive compliance with
any one or more of such conditions in whole or in part if it
shall see fit to do so, without prejudice to its rights of
termination in the event of the non-fulfilment of any other
condition in whole or in part.
5.3 Conditions for the Vendors' Benefit. The Vendors or
the Company shall not be obliged to complete the sale of the
Shares unless each of the following conditions shall have
been satisfied on or before the Closing Date:
(a) Accuracy of Representations - The representations and
warranties of Apta, Exchangeco, NovaScotiaco and the
Principals set forth in sections 4.3, 4.4, 4.5 and 4.6 above
shall be true and correct as of the Closing Date, except as
those representations and warranties may be affected by the
occurrence of events or transactions expressly contemplated
and permitted by this Agreement, including, without
limitation, those in the ordinary course of business, and
Apta, Exchangeco, NovaScotiaco and the Principals shall have
provided certificates confirming the foregoing.
(b) Performance of Obligations - Apta, Exchangeco,
NovaScotiaco and the Principals shall have performed all of
the obligations hereunder to be performed by it at or prior
to the Closing. Apta, Exchangeco, NovaScotiaco and the
Principals shall not be in breach of any provision of this
Agreement.
(c) Deliveries - Exchangeco and NovaScotiaco shall have
delivered or caused to be delivered to the direction of the
Vendors possession of the Exchangeable Shares and the Apta
Shares, respectively, free and clear of any Encumbrances,
together with all endorsements and documents required to
authorize or give effect to said transfer. Apta,
Exchangeco, NovaScotiaco and the Principals shall have
delivered or caused to be delivered to the Depositary and
the Vendors all items required to be delivered by it at
Closing under section 5.4 below.
(d) Consents, Authorizations and Registrations - All
consents, approvals, orders and authorizations of, from or
notifications to any Persons or Governmental Authorities
required (if any) in connection with the completion of any
of the transactions contemplated by this Agreement, the
execution of this Agreement, the Closing or the performance
of any of the terms and conditions of this Agreement shall
have been obtained on or before the Closing Date.
(e) No Claims - There shall be no injunction or order
issued preventing, and no pending or threatened claim,
action, litigation or proceeding, judicial or
administrative, or investigation against any Party by any
Governmental Authority or Person for the purpose of
enjoining or preventing the consummation of this Agreement,
or otherwise claiming that this Agreement or the
consummation thereof is improper or would give rise to
proceedings under any statute or rule of law.
(f) No Material Changes - There shall have been no Material
Adverse Change in the business, assets, liabilities,
prospects, operations, of Apta Exchangeco and NovaScotiaco.
There shall have been no Material Adverse Change in the
Listing Status or Reporting Issuer Status of Apta. Apta
shall not have issued any shares or entered into any transac
tions outside the Ordinary Course of Business.
(h) Opinion - Counsel for Apta shall have delivered an
opinion addressed to the Vendors and the Company in form,
content and scope satisfactory to the Company's counsel,
with respect to: the incorporation and existence of Apta,
Exchangeco and NovaScotiaco; the authorized and issued
capital of Apta, Exchangeco and NovaScotiaco; the due
authorization, execution and delivery of this Agreement, the
Support Agreement and the Voting and Exchange Agency
Agreement by Apta, Exchangeco and NovaScotiaco; the validity
of the issuance of the Apta Shares and the Exchangeable
Shares issuable pursuant to section 2.2 above; the due
authorization of the issuance of Apta Shares upon the
exchange, redemption or retraction of the Exchangeable
Shares; and such other matters as counsel to the Company may
reasonably request.
(g) Assets and Indebtedness - Apta and the Principals shall
have entered into the Asset Sale Consulting Agreement and
Apta shall have sufficient Assets (including shares of its
subsidiaries) other than Assets acquired under this
Agreement, to repay all Indebtedness accrued prior to
Closing or in connection with this Agreement.
If any one or more of the foregoing conditions shall not
have been fulfilled on or before the Closing Date, any one
of the Depositary on behalf of the Vendors or the Company
may terminate this Agreement by notice in writing to Apta,
Exchangeco and NovaScotiaco in which event all Parties shall
be released from all obligations under this Agreement unless
the Party giving notice can show that the condition relied
upon could reasonably have been performed by the other
Parties; provided, however, that the Party entitled to give
notice shall be entitled to waive compliance with any one or
more of such conditions in whole or in part if it shall see
fit to do so, without prejudice to their rights of
termination in the event of the non-fulfilment of any other
condition in whole or in part.
5.4 Deliveries on Closing. On the Closing Date:
(a) Exchangeco will deliver to the Group B Vendors, or as
directed by the Group B Vendors, certificates
representing the Exchangeable Shares in accordance with
section 2.2. above;
(b) Apta will deliver to the Group A Vendors, or as
directed by the Group A Vendors, certificates
representing the Apta Shares in accordance with section
2.2. above;
(c) the Group B Vendors will deliver to Exchangeco, or as
directed by Exchangeco, certificates representing their
Shares duly signed off for transfer, together with all
other documentation required to transfer title to
their Shares to or to the direction of Exchangeco,
provided that if there are no certificates representing
the Shares, the Depositary shall deliver to Exchangeco,
or as directed by Exchangeco, an executed stock power
of attorney or other document evidencing the transfer
of the Shares from the Group B Vendors to or to the
direction of Exchangeco;
(d) the Group A Vendors will deliver to Apta, or as
directed by Apta, certificates representing their
Shares duly signed off for transfer, together with all
other documentation required to transfer title to
their Shares to or to the direction of Apta, provided
that if there are no certificates representing the
Shares, the Depositary shall deliver to Exchangeco, or
as directed by Exchangeco, an executed stock power of
attorney or other document evidencing the transfer of
the Shares from the Group A Vendors to or to the
direction of Exchangeco;
(e) Apta, Exchangeco and Novascotiaco shall execute or
deliver an executed Support Agreement;
(f) Apta, Exchangeco and the Voting Agent shall execute and
deliver the Voting and Exchange Agency Agreement;
(g) Apta and the Principals shall deliver sequential
resignations in writing of those of its current
directors and officers who have been designated by the
Vendors, and sequential appointments of the persons
designated by the Depositary as new directors and
officers of Apta;
(h) Apta and the Principals shall execute and deliver the
Asset Sale Consulting Agreement;
(i) the Principals shall deliver to Apta an executed
Principals' Guarantee;
(j) Apta shall deliver:
(i) its minute book, Constating Documents and general
corporate records, including all minutes of
shareholder and director meetings;
(ii) a list of its shareholders as of the Closing Date
prepared by its transfer agent including the
latest "DTC" list from the Depository Trust
Corporation and any other intermediary;
(iii) filing receipt from the State of Delaware and
a certificate from the State of Delaware attesting
to its corporate existence and good standing;
(iv) the legal opinion referred to in section 5.3(g)
above;
(v) the certificates of Apta, Exchangeco, NovaScotiaco
and the Principals referred to in section 5.3(a)
above; and
(vi) such other documents as may reasonably be
requested by the Company or its counsel.
(k) the Company shall deliver:
(i) its minute book, Constating Documents and general
corporate records, including all minutes of
shareholder and director meetings;
(ii) filing receipt from the its jurisdiction of
incorporation and a certificate from its
jurisdiction of incorporation attesting to its
corporate existence and good standing;
(iv) the legal opinion referred to in section 5.2(g)
above;
(v) the certificates of the Depositary and the Company
referred to in section 5.2(a) above;
(vi) a detailed business plan with financial
projections;
(vii) the Company's Financial Statements, prepared
in accordance with U.S. GAAP;
(viii) a list of the persons to be appointed as
directors and officers of Apta at Closing, and all
consents, affidavits or other documents as may be
required to evidence such persons' consent to act
as directors and officers of Apta; and
(ix) such other documents as may reasonably be
requested by Apta or its counsel.
ARTICLE 6 -TRANSACTION EXPENSES
6.1 Except for the provisions of section 3.10 above, each
Party to this Agreement will bear all costs and expenses
incurred by it in negotiating this Agreement and in closing
and carrying out the transactions contemplated by this
Agreement save and except the Vendors which shall be to the
account of the Company. All costs and expenses related to
satisfying any condition or fulfilling any covenant
contained in this Agreement will be borne by the party whose
responsibility it is to satisfy the condition or fulfil the
covenant in question.
ARTICLE 7 - CONFIDENTIALITY
7.1 Confidentiality. Each Party (referred to as the
"Receiving Party" in this Article 7 acknowledges and agrees
that the information which it receives from any of the other
Parties (referred to as the "Disclosing Party" in this
Article 7), is and shall be confidential and proprietary to
the Disclosing Party (the "Confidential Information"). The
Receiving Party agrees not to disclose the Confidential
Information to any third party, nor to use the Confidential
Information for any purpose other than the performance of
its obligations under this Agreement and any other agreement
with the Disclosing Party, without the prior written consent
of the Disclosing Party. The Receiving Party agrees to
restrict dissemination of particular Confidential
Information to only those persons in its organization, or to
its legal counsel, who must have access to such Confidential
Information in order for the Receiving Party to perform its
obligations under this Agreement and any other agreement
with the Disclosing Party. The Receiving Party shall cause
every employee or third party to whom it discloses
Confidential Information as permitted hereunder to abide by
the foregoing confidentiality provisions. Upon the
termination of this Agreement, the Receiving Party shall
promptly return such confidential information (and any
copies, extracts and summaries thereof) to the Disclosing
Party or, with the Disclosing Party's written consent, shall
promptly destroy such confidential information (and any
copies, extracts and summaries thereof) and, with respect to
electronically stored copies, delete such records from any
storage unit. The Receiving Party's obligations under this
Article 8 shall come into effect on the date hereof and
shall continue indefinitely.
7.2 Exclusions. The Receiving Party's obligations with
regard to the Confidential Information shall not apply in
respect of such information that:
(a) the Disclosing Party authorizes the Receiving Party to
disclose to third parties by prior written
authorization;
(b) is or becomes available in the public domain, other
than by an act or omission of the Receiving Party or
any employee, agent or other person acting for or on
behalf of the Receiving Party;
(c) is lawfully acquired by the Receiving Party from
another source without restriction; or
(d) is ordered to be disclosed by a court, administrative
agency or other governmental body with jurisdiction
over the parties, provided the Receiving Party will
first have provided the Disclosing Party with prompt
written notice of such required disclosure and will
take reasonable steps to allow the Disclosing Party to
seek a protective order with respect to the
confidentiality of the information required to be
disclosed. The Receiving Party will promptly co-
operate with and assist the Disclosing Party in
connection with obtaining such protective order, at the
Disclosing Party's expense.
7.3 Exemption for 8-K Filing. Nothing in this Article 7
shall prevent the filing of a form 8-K with the SEC together
with a press release mutually acceptable to the Parties
which shall also be filed as an exhibit to the Form 8-K, and
the disclosure of all information required to be disclosed
therein under U.S. Securities Law, as provided for in
section 3.8 above.
ARTICLE 8 - GENERAL
8.1 Entire Agreement. This Agreement, together with the
agreements and other documents to be delivered pursuant to
this Agreement, constitutes the entire agreement between the
Parties pertaining to the matters contemplated herein and
supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, and
there are no warranties, representations and other
agreements between the Parties in connection with the
subject matter hereof except as specifically set forth in
this Agreement or any other agreement or document to be
delivered pursuant to this Agreement.
8.2 Notices. All notices, requests, demands and other
communications hereunder must be made in writing and will be
deemed to have been duly given if delivered by courier, sent
by prepaid registered mail addressed to the addressee at the
address appearing on the first page hereof or to such other
address as may be given in writing by the Party, or sent by
facsimile transmission to the fax number of the addressee
given below or to such other fax number as may be given in
writing by the Party:
(a) to the Depositary or the Company: (506) 533-1470
with a copy to:
Carbonaro Sugar Szweras LLP
Barristers and Solicitors
390 Bay Street, Suite 1600
Toronto, Ontario, M5H 2Y2
Tel.: (416) 368-2500
Fax: (416) 368-0909
(b) to Apta, Exchangeco, NovaScotiaco or the Principals:
(856) 727-0128
with a copy to:
Stephen M. Robinson, Esq.
Stephen M. Robinson, P.A.
126 Wharton Court
Shamong, New Jersey, 08088
Tel.: (856) 596-8660
Direct Tel.: (856) 268-0588
Fax: (856) 596-8662
Direct Fax: (856) 268-5615
Any notice given by personal delivery shall be deemed to be
received on the date of delivery. Any notice sent by courier
shall be deemed to be received on the next Business Day
following the deposit of the communication with the courier
service. Any notice sent by prepaid registered mail shall
be deemed to be received on the fifth (5th) day other than a
Saturday, Sunday or statutory holiday in New Brunswick,
following the deposit of the communication in the mail. 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
may not be mailed but must be given by personal delivery or
by electronic communication. Any notice sent by facsimile
or similar method of recorded communication shall be deemed
to have been received on the date of its transmission if
transmitted before 4:30 p.m. (Toronto time), and on the next
Business Day following the date of its transmission if
transmitted after that time.
8.3 Time of Essence. Time shall be of the essence in all
respects of this Agreement.
8.4 Further Assurances. The Parties shall with reasonable
diligence do all things and provide all reasonable
assurances as may be required to complete the transactions
contemplated by this Agreement, and each Party shall provide
such further documents or instruments required by any other
Party as may be reasonably necessary or desirable to give
effect to this Agreement and carry out its provisions.
8.5 Public Notice. All public notices to third parties and
all other publicity concerning the transactions contemplated
by this Agreement shall be jointly planned and co-ordinated
by the Parties and no Party shall act unilaterally in this
regard without the prior consent of the other Party, such
approval not to be unreasonably withheld.
8.6 Amendment. No supplement, modification, waiver or
termination of this Agreement shall be binding unless
executed in writing by both Parties.
8.7 Waiver. No waiver of any of the provisions of this
Agreement shall constitute a waiver of any other provision
(whether or not similar) nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
8.8 Assignment. This Agreement and the rights or
obligations hereunder or thereunder may not be assigned by
either Party without the prior written consent of the other
Parties, except that upon the incorporation of Exchangeco
and the formation of Novascotiaco, all rights and
obligations of Ralph Eisenschmid acting in trust for
Exchangeco and Novascotiaco shall be automatically assigned
to Exchangeco and Novascotiaco respectively, and Ralph
Eisenschmid shall be automatically released from all
obligations undertaken in trust for Exchangeco and
Novascotiaco under this Agreement.
8.9 Binding Agreement. This Agreement shall be binding on
and enure to the benefit of both Parties and their
respective successors and permitted assigns. In addition
all obligations of the Parties under this Agreement shall
also be binding upon any and all directors, officers,
employees, consultants, advisors and agents of each Party as
well as all parent corporations, subsidiaries, related and
affiliated companies thereof.
8.10 Governing Law. This agreement shall be governed by and
interpreted in accordance with the laws of the State of
Delaware and the federal laws of the United States of
America applicable therein.
8.11 Severability. If any provision of this Agreement is
determined to be prohibited, void or unenforceable in whole
or in part, such void or unenforceable provision shall not
affect or impair the validity of any other provision of this
Agreement and shall be severable from this Agreement. Any
such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision
in any other jurisdiction.
8.12 Independent Legal Advice. Each Party acknowledges
having been advised to seek independent legal counsel in
respect of the Agreement and the matters contemplated
herein. To the extent that a Party declines to receive
independent legal counsel in respect of the Agreement, that
Party hereby waives the right, should a dispute later
develop, to rely on its lack of independent legal counsel to
avoid its obligations, to seek indulgences from the other
Parties hereto, or to otherwise attack the integrity of the
Agreement and the provisions thereof, in whole or in part.
8.13 Counterparts. This Agreement may be executed by the
Parties in one or more counterparts by facsimile, each of
which when so executed and delivered shall be an original
and such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF the parties have duly executed this
Agreement on the day and year first above written.
APTA HOLDINGS, INC.
Per:__________________________
Authorized Signing
Officer
I have authority to bind
the corporation
______________________________
RALPH EISENSCHMID IN TRUST
FOR
INTELISYS ACQUISITION INC.,
A COMPANY TO BE INCORPORATED
______________________________
RALPH EISENSCHMID IN TRUST FOR
INTELISYS (NOVA SCOTIA)
COMPANY,
AN UNLIMITED LIABILITY COMPANY
TO BE FORMED
CONVERGIX INC.
Per:__________________________
Authorized Signing
Officer
I have authority to bind the
corporation
THE VENDORS:
____________________________ _____________________________________
Witness Ralph Eisenschmid, on his own
behalf and on behalf of all of
the shareholders of Convergix
Inc.
THE PRINCIPALS:
____________________________ _____________________________________
Witness Harry J. Santoro
____________________________ _____________________________________
Witness Stephen M. Robinson
SCHEDULE "A"
SHAREHOLDINGS OF THE VENDORS
GROUP A
Name and Address of Shareholder Number of Shares Held and
Number of Apta Shares to be
Issued
Poirier, Lloyd 2,295,000
50 Poirier Leblanc Road
Grande Digue, New Brunswick, E4R
4R3
Three Eff Corporation 1,000,000
Hibiscus SQ. Pond St. PO Box 159
Grand Turk, Turks & Caicos Islands
Total 3,295,000
GROUP B
Name and Address of Shareholder Number of Shares Held and
Number of Exchangeable
Shares to be Issued
053389 NB Ltd 10,000
14 Southall Court
Fredericton, New Brunswick, E3B
7A1
Andersen, Rob 19,720
228 Bayview Court
Shediac, New Brunswick, E4P 1G3
Barrett, Matthew 15,250
30 Ralph Street
Moncton, New Brunswick, E1C 2V9
Beauchemin, Melina 18,750
102 McQueen Street - Apt. 2
Shediac, New Brunswick, E4P 1H9
Bierbach, Thomas 17,533
4 Harbourview Drive
Scoudouc Road, New Brunswick, E4P
3C7
Bowness, David 16,731
56 Laurentide Road
Riverview, New Brunswick, E1B 2W5
Byron, Jeremy 34,000
25 Dushermalee
Grand Barachois, New Brunswick,
E4P 7W8
Colpitts, Greg 150,000
11 Rothesay Park Road
St-John, New Brunswick, E2E 5T7
Connell Joe 300,000
13893 Highway #7
Halton Hills, Georgetown, Ontario,
L7G 4Y4
Duffy, Kenny 10,000
112 Caissie Avenue
Shediac, New Brunswick, E4P 1K5
Eisenschmid, Charlene 783,333
65 Mathieu-Martin
Grand Barachois, New Brunswick,
E4P 7V7
Eisenschmid, Ed 131,579
154 Allanford
Ottawa, Ontario, K1T 3Y4
Eisenschmid, Lise 131,579
154 Allanford
Ottawa, Ontario, K1T 3Y4
Eisenschmid, Hans 84,329
12154 Richer Blvd.
Pierrefonds, Quebec, H8Z 1K4
Eisenschmid, Ralph 12,563,772
65 Mathieu-Martin
Grand Barachois, New Brunswick,
E4P 7V7
English, John 1,500,000
113 Cap Brule Road
Boudreau West, New Brunswick, E4P
6J1
Field, Andrew 24,469
31 Coronation Drive
Moncton, New Brunswick, E1E 2X2
Galloway, Kalyn 13,214
530 Front Mountain Road
Moncton, New Brunswick, E1G 3H4
Gauld, Charlene 11,827
83 LeBlanc Avenjue
Shediac, New Brunswick, E4P 1Y6
Hudson, Joel 15,815
122 Wedgewood Avenue
Riverview, New Brunswick, E1B 2C9
Juman, Mohamed 2,666,667
P.O. Box 743
Manama, Kingdom of Bahrain,
Kays, Frank 17,932
58 Bell Street
Moncton, New Brunswick, E1E 2H6
Keffer, Duncan 52,632
403 Walworth Drive
Dollard Des Ormeaux, Quebec, H9G
2G1
Keffer, Francis 13,158
403 Walworth Drive
Dollard Des Ormeaux, Quebec, H9G
2G1
Lane, Dawson 750,000
31 Port Rush Trail
Unionville, Ontario, L6C 1Z3
Little, Malcolm 25,000
60 Methodist Point Road
Mundleville, New Brunswick, E4W
2L5
Markevich, Jonathan 1,000
100 Job Road
Grand Barachois, New Brunswick,
E4P 7P9
Morrissey, Craig 16,161
3084 Route 134
Shediac Cape, New Brunswick, E4P
3H6
Orr, Don 1,000,000
6624 Cedar Acres
Greely, Ontario, K0A 1Z0
Pecora, Linda 22,368
4028 rue de la Duchesse
Duvernay, Quebec, H7C 2S2
Perri, Santo 10,000
107 Ellerdale Avenue
Moncton, New Brunswick, E1A 3M8
Robertson, Surrette 188,372
Reid, Pamela 25,000
603 - 5530 Artillery Road
Halifax, Nova Scotia, B3J 1J3
Willam Rigguto (In Trust) 37,500
19 rue le Royer Ouest
Montreal, Quebec, H2Y 1W4
Sjodin, Stephen 10,000
16 Jude Street
Shediac Bridge, New Brunswick, E4R
1L6
Smith, Daryl Leonard 42,857
4009 Lytton Avenue
Powell River, British Columbia,
V8A 5A6
Smith, Quentin Henry 42,857
12171 Trites Road
Richmond, British Columbia, V7E
3R6
Smith, Sheldon Charles 42,857
Box 2186
Port Hardy, British Columbia, V0N
2P0
Smith, Spencer Daryl 42,857
5053 44B Avenue
Delta, British Columbia, V4K 1J2
Stewart, Joanne 10,000
194 Pointe de Chene Road
Pointe de Chene, New Brunswick,
E4P 1V1
Tardif Lane, Lynda 750,000
31 Port Rush Trail
Unionville, Ontario, L6C 1Z3
Taylor, Jeff 28,750
44 Bellevue - PO Box 375
St. Louis-de-Kent, New Brunswick,
E4X 1B5
Trites, Roger 5,000
16 Queen Street
Pointe de Chene, NB, E4P 4X9
Varcoe, Carol 13,158
13153 Sunbury
Pierrefonds, Quebec, H9A 1E5
Varcoe, Dennis 13,158
13153 Sunbury
Pierrefonds, Quebec, H9A 1E5
Venture Communications 10,000
35 Colter Court
Fredericton, NB, E3B 1X7
Vuillemot, Ben 15,815
213 Ogden Road
Riverview, New Brunswick, E1B 2S5
Total 21,705,000
SCHEDULE "B"
SUPPORT AGREEMENT
SCHEDULE "C"
VOTING AND EXCHANGE AGENCY AGREEMENT
SCHEDULE "D"
COMPANY'S FINANCIAL STATEMENTS
SCHEDULE "E"
ASSETS OF THE COMPANY
The Company has no assets except as set out in the Company's
Financial Statements.
SCHEDULE "F"
INDEBTEDNESS OF THE COMPANY
The Company has no Indebtedness except as set out in the
Company's Financial Statements.
SCHEDULE "G"
PERMITTED ENCUMBRANCES OF THE COMPANY
Under the Company's Constating Documents, no Shares may
issued or transferred unless the issuance or transfer is
approved by the board of directors of the Company, which
approval shall be given for the sale of the Shares
contemplated in this Agreement.
Security interest in the assets of Cynaptec Information
Systems Inc. and InteliSys Aviation Systems Inc.,
subsidiaries of the Company, granted to the Royal Bank of
Canada.
SCHEDULE "H"
MATERIAL CONTRACTS OF THE COMPANY
Master Agreement and Subscription Agreement with Compaq
Cayman Islands Investment Company dated January 22, 2001.
Credit Note from Compaq Cayman Islands Investment Company
dated June 22, 2001.
Industrial Research Assistance Program Contribution
Agreement with the National Research Council Canada dated
November 2, 2000.
Share Purchase Agreement with the Province of New Brunswick
dated February 29, 2000.
Repayable Contribution Agreements with the Atlantic Canada
Opportunities Agency dated October 5, 1998, December 17,
1999, and February 26, 2001, and amended July 13, 2001 (in
the case of the first two agreements) and April 20, 2001,
respectively.
Lease Agreement with Place 815 Bombardier Inc. dated
February 2002.
Software Licence and Development Agreement with AMEX Canada
Inc. dated May 24, 2001.
Forbearance Agreement with Royal Bank of Canada dated March
22, 2002, as amended on August 1, 2002.
Subscription and Repurchase Agreement with Mohamed A. Juman
dated March 31, 2002.
SCHEDULE "I"
EMPLOYMENT CONTRACTS OF THE COMPANY
None.
SCHEDULE "J"
APTA'S FINANCIAL STATEMENTS
SCHEDULE "K"
ASSETS OF APTA
Apta has no assets except as set out in Apta's Financial
Statements.
SCHEDULE "L"
INDEBTEDNESS OF APTA
Apta has no Indebtedness except as set out in Apta's
Financial Statements.
SCHEDULE "M"
PERMITTED ENCUMBRANCES OF APTA
None.
SCHEDULE "N"
MATERIAL CONTRACTS OF APTA
None.
SCHEDULE "O"
EMPLOYMENT CONTRACTS OF APTA
None.
SCHEDULE "P"
ASSET SALE CONSULTING AGREEMENT
SCHEDULE "Q"
PRINCIPALS' GUARANTEES