ASSET SALE CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 22nd day of November, 2002,
B E T W E E N:
HARRY J. SANTORO, an individual resident at 215
West Main Street, Maple Share, New Jersey, 08052,
- and -
STEPHEN M. ROBINSON, an individual resident at 126
Wharton Court, Shamong, New Jersey, 08088,
(the foregoing parties being hereinafter collectively
referred to as the "Consultants")
- and -
INTELISYS AVIATION SYSTEMS U.S.A. INC. (formerly "Apta
Holdings, Inc."), a corporation incorporated under the
laws of the State of Delaware, having its principal
office at 815 Bombardier Street, Shediac, New
Brunswick, E4P 1H9 (the "Company")
WHEREAS as of the date hereof the Company acquired, through its
wholly-owned subsidiary Intelisys Acquisition Inc., all of the
issued and outstanding shares of Convergix Inc.("Convergix")
pursuant to an agreement between the Company, Convergix,
Intelisys Acquisition Inc., Intelisys (Nova Scotia) Company, the
Consultants and Ralph Eisenschmid dated November 22, 2002 (the
"Share Exchange Agreement");
AND WHEREAS the Company intends to pursue as its business the
business currently carried on by Convergix and desires to dispose
of its current assets which are not related to that business;
AND WHEREAS the Company desires to retain the Consultants to
dispose of said assets on behalf of the Company, and the
Consultants desires to provide those services to the Company upon
and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE WITNESS that in consideration of the respective
covenants, conditions, warranties and agreements herein contained
and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged by each of the
parties hereto) it is agreed by and between them as follows:
ARTICLE 1 - APPOINTMENT AND DUTIES
1.1 The Company hereby retains the Consultants as its agents
with limited authority to sell all of the 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 the Company ("Assets"), including the shares of all of its
subsidiaries, other than any Assets acquired pursuant to the
Share Exchange Agreement. The parties agree and acknowledge that
the Consultants are not otherwise agents of the Company and shall
have no authority to bind the Company except to the extent and
for the limited purpose set out in this section.
1.2 The Consultants agree to effect the sale of the Assets
within three (3) months from the date hereof.
1.3 The proceeds of the sale of the Assets shall be used to
repay all liabilities, debts, accounts payable and other monetary
obligations of the Company incurred prior to the date hereof or
in connection with the Share Exchange Agreement (the
"Indebtedness").
1.4 The Consultants hereby agree that if the proceeds of the
sale of the Assets are not sufficient to repay all of the
Indebtedness, the Consultants shall pay to the Company the amount
by which the Indebtedness exceeds the proceeds of said sale.
Upon the execution of this Agreement, the Consultants shall
execute and deliver to the Company a guarantee to that effect in
the form attached as Schedule "Q" to the Share Exchange
Agreement.
1.5 In providing their services under this Agreement, the
Consultants shall use their best efforts and dedicate sufficient
time and energy to seeking out and finding buyers for the Assets
and negotiating the best terms for the sale of the Assets. The
Consultants may carry on other business and to provide similar
services to other persons, subject only to the standard of
service specified in this section and the Consultants'
confidentiality obligations under Article 4 below.
1.6 The parties agree and acknowledge that the Consultants are
independent contractors and not employees of the Company.
Nothing in the Agreement shall be deemed to require the
Consultants to provide services exclusively to the Company and
the Consultants hereby acknowledge that the Company is not
required and shall not be required to make any remittances and
payments required of employers by statute or otherwise on the
Consultants' behalf, and the Consultants or any of their agents
or employees shall not be entitled to the fringe benefits
provided by the Company to its employees.
ARTICLE 2 - TERM AND TERMINATION
2.1 The engagement of the Consultants hereunder shall, unless
earlier terminated as provided for herein, be for a period of
three (3) months commencing on the date hereof (the "Term").
ARTICLE 3 - COMPENSATION
3.1 As compensation for finding buyers for the Assets and
negotiating with them, the Consultants shall be entitled to a fee
equal to the amount by which the proceeds of the sale of Assets
exceed the Indebtedness to be repaid, if any.
ARTICLE 4 - GENERAL
4.1 The headings in this Agreement are included for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose.
4.2 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 Company: (506) 533-1470
with a copy to:
Carbonaro Stewart Kligerman Sugar LLP
Barristers and Solicitors
390 Bay Street, Suite 1600
Toronto, Ontario, M5H 2Y2
Tel.: (416) 368-2500
Fax: (416) 368-0909
(b) to the Consultants: (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.
4.3 Time shall be of the essence of this Agreement.
4.4 This Agreement may not be modified, supplemented or amended
except by instrument in writing signed by the parties hereto or
by their respective successors or permitted assigns. No waiver of
any of the provisions of this Agreement, in whole or in part, by
either party shall be deemed or shall constitute a waiver of any
other provisions hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver unless otherwise expressly
provided.
4.5 If any covenant or provision herein contained is prohibited
in whole or in part in any jurisdiction, such covenant or
provision shall, as to such jurisdiction, be ineffective to the
extent of such prohibition without invalidating the remaining
covenants and provisions hereof therein and shall, as to such
jurisdiction, be severed from this Agreement to the extent of
such prohibition.
4.6 All monetary amounts referred to herein shall, unless
specifically stated otherwise, refer to the lawful currency of
the United States of America.
4.7 This Agreement shall not be assigned or transferred, in any
manner whatsoever, by the Consultants.
4.8 This Agreement shall be construed and enforced in accordance
with, and the respective rights of the parties shall be governed
by, the laws of the State of New Jersey and the federal laws of
the United States of America applicable therein.
4.9 The Parties acknowledge that this provision shall serve as
notice to each party of being advised to arrange for such
independent legal advice with respect to this Agreement, each of
the matters herein and the implications thereof, as each party
may independently deem necessary, and that each party has either
obtained such independent legal advice or waives the right
thereto by signing this Agreement.
4.10 This Agreement, as modified, supplemented or amended from
time to time, along with any agreements or other documents to be
delivered pursuant hereto, sets forth the entire agreement and
understanding of the parties in respect of the matters
contemplated herein and supersedes all prior agreements,
arrangements and understandings relating to the subject matter
hereof.
4.11 The parties hereto shall with reasonable diligence do all
such things and provide its reasonable assurances as may be
required to complete the transactions contemplated herein, and
each party shall provide such further documents or instruments
required by the other party as may be reasonably necessary or
desirable to effect the purposes of this Agreement and to carry
out its provisions, whether before or after the execution hereof.
4.12 This Agreement may be executed by the Parties hereto in one
or more counterparts by original or facsimile signature, each of
which when so executed shall be deemed an original and all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties have executed this agreement as of
the date first above written.
____________________________ _____________________________________
Witness Harry J. Santoro
____________________________ _____________________________________
Witness Stephen M. Robinson
INTELISYS AVIATION SYSTEMS U.S.A
INC.
Per: ___________________________
Authorized Signing Officer
I have authority to bind the
corporation.