EXHIBIT 10.2 Amendment to Stock for Stock Acquisition Agreement
AMENDMENT TO STOCK FOR STOCK ACQUISITION AGREEMENT
THIS Amendment to Stock for Stock Acquisition Agreement (the Amendment)
is effective as of October14, 2002 by and among BENTLEY COMMUNICATIONS CORP., a
Florida corporation with its principal place of business at 00000 Xxxxxxx
Xxxxxxxxx, Xxx. 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (Bentley), KRYPTOSIMA
ACQUISITION CORP., a Georgia corporation wholly owned by Bentley (Acquisition)
and KRYPTOSIMA, LLC, a Georgia limited liability company with its principal
place of business at 00 Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxx 00000 (Kryptosima).
WHEREAS, BENTLEY and KRYPTOSIMA previously entered into that certain
Stock for Stock Acquisition Agreement effective as of August 20, 2002 (the
Agreement); and
WHEREAS, the parties have determined that it is their best interest to
structure the transaction as a tax-free reorganization pursuant to Section
368(a)(2)(D) of the Internal Revenue Code of 1986, as amended, pursuant to which
Acquisition shall be merged with and into Kryptosima in accordance with the
terms and provisions of this Amendment (the Merger); and
WHEREAS, BENTLEY has formed Acquisition for this transaction and
capitalized Acquisition through a contribution of Fifty Million (50,000,000.00)
restricted shares of Bentley Common Stock (the Bentley Common Stock).
WHEREAS, as a result of Merger, the Members of the Kryptosima will
receive those restricted shares of the common stock of Bentley in exchange for
the issued and outstanding membership interests of Kryptosima all as is more
fully described in and subject to the specific terms and provisions of this
Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants of the parties hereto, and subject to the terms and
conditions set forth herein, the parties hereby agree as follows:
1. REORGANIZATION AND MERGER. Subject to the terms and conditions of
this Amendment and the Agreement, the parties hereto agree that, following the
Closing, Acquisition and Kryptosima shall execute and file the Certificate of
Merger with the Georgia Secretary of State, whereupon Acquisition shall be
merged with and into Kryptosima and Kryptosima shall be the surviving entity in
such merger. It is intended that for federal tax purposes the Merger shall
constitute a reorganization within the meaning of Section 368(a)(2)(D) of the
Code.
2. SURVIVING CORPORATION. Upon the effectiveness of the Articles of
Merger (hereinafter referred to as the "Effective Time of the Merger"),
Acquisition shall be merged with and into Kryptosima and the separate existence
of Acquisition shall cease. Kryptosima shall be the entity surviving the Merger.
3. ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT OF KRYPTOSIMA. The
Articles of Organization and Operating Agreement of Kryptosima at and
immediately prior to the Effective Time of the Merger shall continue to be the
Articles of Organization and Operating Agreement of Kryptosima following the
Effective Time of the Merger.
4. CONVERSION OF KRYPTOSIMA MEMBERSHIP UNITS. All of the Membership
Units of Kryptosima issued and outstanding immediately prior to the Effective
Time of the Merger (the "Kryptosima Units") shall, by virtue of the Merger and
without any action on the part of any holder thereof, be converted into Fifty
Million (50,000,000) shares of Bentley Common Stock (the "Bentley Shares"). The
Bentley Shares shall be "restricted securities" as such term is used in Rule 144
promulgated under the Securities Act. Each member of Kryptosima shall receive a
pro rata share of the restricted Bentley Common Stock.
5. EXCHANGE OF CERTIFICATES. Immediately following the Closing,
Kryptosima and Bentley shall jointly submit to Bentley's registrar and transfer
agent (the "Exchange Agent"), an instruction letter including a list of the
names, addresses and social security numbers/taxpayer identification numbers of
each holder of Kryptosima Units outstanding immediately prior to the Effective
Time of the Merger who has delivered the certificate or certificates
representing all Kryptosima Units held by such Kryptosima Member to Bentley and
for which the holders thereof are not entitled to claim dissenters' rights under
the Georgia Code. As soon as reasonably practicable following the Effective Time
of the Merger, Bentley shall cause the Exchange Agent to cause each such
Kryptosima Member to receive, in exchange for the Kryptosima Units held by such
Kryptosima Member, a certificate or certificates representing the number of
whole and/or fractional shares of Bentley Common Stock into which the shares of
Kryptosima Units so surrendered shall have been converted by the Merger. Subject
to any applicable escheat laws, until so surrendered and exchanged, each
certificate which prior to the Effective Time of the Merger represented
outstanding Kryptosima Units shall be deemed for all corporate purposes of
Bentley, to evidence the ownership of the number of whole and/or fractional
shares of Bentley Common Stock into which the shares of Kryptosima Units
represented thereby shall have been converted. However, no cash or stock
dividend payable, no certificate representing split shares deliverable, and no
other distribution payable or deliverable to holders of record of Bentley Common
Stock at any time subsequent to the Effective Time of the Merger shall be paid
or delivered to the Kryptosima Member of any certificate which at the Effective
Time of the Merger represented Kryptosima Units unless and until such
certificate is surrendered to Bentley and any such distribution shall be
withheld by Bentley until such certificate is delivered. No interest shall be
payable with respect to such payment or delivery of dividends or other
distributions upon the surrender of certificates which represented Kryptosima
Units at the Effective Time of the Merger.
6. THE CLOSING. The delivery of the various opinions, certificates,
consents, instruments and documents which this Amendment contemplates (the
"Closing") shall take place at such place, day and time as shall be mutually
agreed upon by Bentley and Kryptosima, but in no event later than October 18,
2002. This deadline replaces the October 1 deadline in the Agreement. The date
of, and the time at which, the Closing takes place is herein referred to as the
"Closing Date." As soon as practicable after the Closing, the appropriate
officers of Bentley, Acquisition and Kryptosima shall take all necessary action
to bring about the Effective Time of Merger. Finalization of the merger shall be
subject to an audit of Kryptosima's 2001 and 2002 (year-to-date) financials by a
qualified accounting firm.
7. INVESTMENT INTENT. The Kryptosima Units to be acquired by Bentley as
a result of the Merger are being and will be acquired by Bentley for its own
account for investment and not with any present intention of distribution
thereof.
8. COMPENSATION FOR KRYPTOSIMA EMPLOYEES & CONSULTANTS. Effective
immediately upon the closing, Bentley will become responsible for providing
Kryptosima with sufficient working capital to operate, including but not limited
to capital to cover the cost of compensating employees and consultants
("staff").
9. FURTHER ASSURANCES. Each party hereby agrees to execute and deliver
from time to time at the request of any other party or its counsel and without
consideration such additional instruments of conveyance and transfer and to take
such other actions as any other party or their counsel may reasonably require to
more effectively carry out and effectuate the Merger and the transactions
contemplated hereby, including any and all post-closing rights, determinations
or obligations, at or after the effective time of the Merger, and each party and
their respective officers and directors shall execute and deliver all such
documents and assurances and do all other things necessary or desirable to
consummate the Merger and carry out the purposes of the Agreement, as amended
hereby.
10. BLUE SKY COMPLIANCE. Bentley will use its best efforts to obtain
prior to the Effective Time of the Merger all necessary state securities law and
blue sky act permits and approvals required to permit the issuance of the shares
of Bentley Common Stock to be issued in connection with the Merger, and
Kryptosima shall furnish to Bentley all information concerning Kryptosima and
the Kryptosima Members that Bentley may reasonably request in connection with
any such action.
11. PUBLIC ANNOUNCEMENTS. Neither Bentley nor Kryptosima shall make any
public announcement or statement with respect to this Agreement or the Merger
without the prior written consent of the other party; PROVIDED, HOWEVER, Bentley
may disclose the existence and terms of this Amendment or the Merger if, in its
Judgment, it is required to do so under applicable securities laws. If any party
desires to make a joint announcement or statement, the parties will consult with
each other and exercise reasonable efforts to agree upon the text of a joint
public announcement or statement to be made by Bentley and Kryptosima.
12. KRYPTOSIMA MEMBERS' APPROVAL. As a condition to Closing, the
Kryptosima Members shall have approved the terms and provisions of this
Agreement and of the Merger by a meeting of the members of Kryptosima called by
Kryptosima or by written consent of the Members in accordance with applicable
provisions of the Georgia Code and the Articles of Organization and Operating
Agreement of Kryptosima. Holders of no more than one percent (1%) of the
Kryptosima Units outstanding shall be entitled to claim dissenters' rights under
Section 14-11-1001, et seq. of the Georgia Code with respect to such units.
13. AFFIRMATION OF AGREEMENT. Except as modified or superceded hereby,
the parties intend that the Agreement shall remain in full force and effect and
binding between the parties.
IN WITNESS WHEREOF, this Amendment has been duly executed by the
parties hereto as of the date first written above.
BENTLEY COMMUNICATIONS CORP.
________________________________________
Xxxxx Xxxxxxx, Director, President & CEO
________________________________________
Xxxxxx Xxx, Director
________________________________________
Xxxx Xxxxxxxx, Director
KRYPTOSIMA ACQUISITION CORP.
________________________________________
Xxxxx Xxxxxxx
KRYPTOSIMA, LLC
________________________________________
Xxxxx Xxxxxxx, President
