EXHIBIT 2 REORGANIZATION AGREEMENT
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") between BENTLEY
COMMUNICATIONS CORP., a Florida corporation ("BTLY") and the persons listed in
Exhibit A hereof (collectively the "Shareholders"), being the owners of record
of all of the issued and outstanding stock of KYRENIA ACQUISITION CORPORATION, a
Delaware corporation ("KAC").
Whereas, BTLY wishes to acquire and the Shareholders wish to transfer
all of the issued and outstanding securities of KAC in a transaction intended to
qualify as a reorganization within the meaning of 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
Now, therefore, BTLY and the Shareholders adopt this plan of
reorganization and agree as follows:
1. EXCHANGE OF STOCK.
1.1. NUMBER OF SHARES. The Shareholders agree to transfer to BTLY at
the Closing (defined below) the number of shares of common stock of KAC, $.001
par value per share, shown opposite their names in Exhibit A (the "KAC Shares"),
representing 100% of the issued and outstanding KAC Shares, in exchange PRO RATA
for an aggregate of 10,000 shares of voting common stock of BTLY, $.0001 par
value per share (the "BTLY Shares").
1.2 SHARES. The BTLY Shares have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), and will bear a restrictive
legend on their face in accordance with Rule 144 of the Act.
1.3 EXCHANGE OF CERTIFICATES. Each holder of an outstanding certificate
or certificates theretofore representing shares of KAC common stock shall
surrender such certificate(s) for cancellation to BTLY, and shall receive in
exchange a certificate or certificates representing the number of full shares of
BTLY common stock into which the shares of KAC common stock represented by the
certificate or certificates so surrendered shall have been converted. The
transfer of KAC shares by the Shareholders shall be effected by the delivery to
BTLY at the Closing of certificates representing the transferred shares endorsed
in blank or accompanied by stock powers executed in blank.
1.4 FRACTIONAL SHARES. Fractional shares of BTLY common stock shall not
be issued, but in lieu thereof BTLY shall round up fractional shares to the next
highest whole number.
1.5 FURTHER ASSURANCES. At the Closing and from time to time
thereafter, the Shareholders shall execute such additional instruments and take
such other action as BTLY may request in order more effectively to sell,
transfer, and assign the transferred stock to BTLY and to confirm BTLY's title
thereto.
2. RATIO OF EXCHANGE. The securities of KAC owned by the Shareholders,
and the relative securities of BTLY for which they will be exchanged, are set
out opposite their names Exhibit A.
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3. CLOSING.
3.1. TIME AND PLACE. The Closing contemplated herein shall be held as
soon as possible at the offices of Xxxxxxx and Xxxxxxxx at 0000 Xxxx Xxxxxxxx,
Xxx Xxxxx, Xxxxxx, unless another place or time is agreed upon in writing by the
parties without requiring the meeting of the parties hereof. All proceedings to
be taken and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed. The date of Closing may be accelerated or
extended by agreement of the parties.
3.2. FORM OF DOCUMENTS. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by this Agreement
or any signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission or original signature.
4. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Closing represented KAC common stock shall be
deemed for all purposes, other than the payment of dividends or other
distributions, to evidence ownership of the number of shares of BTLY common
stock into which it was converted. No dividend or other distribution shall be
paid to the holders of certificates of KAC common stock until presented for
exchange at which time any outstanding dividends or other distributions shall be
paid.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, individually and separately, represent and warrant as
follows:
5.1. TITLE TO SHARES. The Shareholders, and each of them, are the
owners, free and clear of any liens and encumbrances, of the number of KAC
shares which are listed in the attached schedule and which they have contracted
to exchange.
5.2. LITIGATION. There is no litigation or proceeding pending, or to
any Shareholder's knowledge threatened, against or relating to shares of KAC
held by the Shareholders.
5.3 CORPORATE STATUS. KAC is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary.
5.4 CAPITALIZATION. The authorized capital stock of KAC consists of
[NUMBER] shares of common stock, par value per share, of which [SHARES] shares
are issued and outstanding, all fully paid and non-assessable, and no shares of
non-designated preferred stock have been issued.
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5.5 SUBSIDIARIES. KAC has no subsidiaries.
5.6 CONTRACTS. KAC is not a party to any material contract other than
those listed as an attachment hereto.
5.7 NO VIOLATION. Execution of this Agreement and performance by KAC
hereunder has been duly authorized by all requisite corporate action on the part
of KAC, and this Agreement constitutes a valid and binding obligation of KAC and
performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgement, decree, law,
or regulation to which any property of KAC is subject or by which KAC is bound.
5.8 TAXES. KAC has filed in correct form all federal, state, and other
tax returns of every nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges received by it to
the extent that such taxes, assessments, fees and charges have become due. KAC
has also paid all taxes which do not require the filing of returns and which are
required to be paid by it. To the extent that tax liabilities have accrued, but
have not become payable, they have been adequately reflected as liabilities on
the books of KAC and are reflected in the financial statements furnished hereto.
5.9 TITLE TO PROPERTY. KAC has good and marketable title to all
properties and assets, real and personal, reflected in KAC's Financial
Statements, except as since sold or otherwise disposed of in the ordinary course
of business, and KAC's properties and assets are subject to no mortgage, pledge,
lien, or encumbrance, except for liens shown therein, with respect to which no
default exists.
5.10 INVESTMENT INTENT. The Shareholders are acquiring the BTLY shares
to be transferred to it under this Agreement for investment and not with a view
to the sale or distribution thereof.
5.11 SEC. KAC is a fully reporting company pursuant to Section 12g of
the Securities Exchange Act of 1934, and is up to date with all of its SEC
filings, and is in good standing with the SEC.
6. REPRESENTATIONS AND WARRANTIES OF BTLY
BTLY represents and warrants as follows:
6.1 CORPORATE STATUS. BTLY is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary.
6.2 CAPITALIZATION. The authorized capital stock of BTLY consists of
80,000,000 shares of common stock, par value $0.0001 per share, and 20,000,000
shares of preferred stock, par value $0.0001 per share.
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6.3 SUBSIDIARIES. BTLY has no subsidiaries.
6.4 LITIGATION. There is no litigation or proceeding pending, or to the
Company's knowledge threatened, against or relating to BTLY, its properties or
business, except as set forth in a list certified by the president of BTLY and
delivered to the Shareholders.
6.5 CONTRACTS. BTLY is not a party to any material contract other than
those listed as an attachment hereto.
6.6 NO VIOLATION. Execution of this Agreement and performance by BTLY
hereunder has been duly authorized by all requisite corporate action on the part
of BTLY, and this Agreement constitutes a valid and binding obligation of BTLY
and performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgement, decree, law,
or regulation to which any property of BTLY is subject or by which BTLY is
bound.
6.7 TAXES. BTLY has filed in correct form all federal, state, and other
tax returns of every nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges received by it to
the extent that such taxes, assessments, fees and charges have become due. BTLY
has also paid all taxes which do not require the filing of returns and which are
required to be paid by it. To the extent that tax liabilities have accrued, but
have not become payable, they have been adequately reflected as liabilities on
the books of BTLY and are reflected in the financial statements furnished
hereto.
6.8 TITLE TO PROPERTY. BTLY has good and marketable title to all
properties and assets, real and personal, reflected in BTLY's Financial
Statements, except as since sold or otherwise disposed of in the ordinary course
of business, and BTLY's properties and assets are subject to no mortgage,
pledge, lien, or encumbrance, except for liens shown therein, with respect to
which no default exists.
6.9 CORPORATE AUTHORITY. BTLY has full corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder, and will
deliver at the Closing a certified copy of resolutions of its board of directors
authorizing execution of this Agreement by its officers and performance
thereunder.
6.10 INVESTMENT INTENT. BTLY is acquiring the KAC shares to be
transferred to it under this Agreement for investment and not with a view to the
sale or distribution thereof.
7. CONDUCT PENDING THE CLOSING
BTLY and the Shareholders covenant that between the date of this Agreement
and the Closing as to each of them:
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7.1. No change will be made in the charter documents, by-laws, or other
corporate documents of BTLY or KAC.
7.2. BTLY will use its best efforts to maintain and preserve its
business organization, employee relationships and goodwill intact, and will not
enter into any material commitment except in the ordinary course of business.
7.3. None of the Shareholders will sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the KAC shares of common stock owned by
them.
8. CONDITIONS PRECEDENT TO OBLIGATION OF THE SHAREHOLDERS
The Shareholder's obligation to consummate this exchange shall be subject
to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by the Shareholders as appropriate:
8.1. BTLY REPRESENTATIONS AND WARRANTIES. The representations and
warranties of BTLY set forth herein shall be true and correct at the Closing as
though made at and as of that date, except as affected by transactions
contemplated hereby.
8.2. BTLY COVENANTS. BTLY shall have performed all covenants required
by this Agreement to be performed by it on or before the Closing.
8.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been
approved by the Board of Directors of BTLY.
8.4. SUPPORTING DOCUMENTS OF BTLY. BTLY shall have delivered to the
Shareholders supporting documents in form and substance reasonably satisfactory
to the Shareholders, to the effect that:
(a) BTLY is a corporation duly organized, validly existing, and in good
standing;
(b) BTLY's authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of directors of
BTLY authorizing the execution of this Agreement and consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors
of BTLY;
(e) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
9. CONDITIONS PRECEDENT TO OBLIGATION OF BTLY
BTLY's obligation to consummate this merger shall be subject to fulfillment
on or before the Closing of each of the following conditions, unless waived
in writing by BTLY:
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9.1. SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Shareholders set forth herein shall be true and correct at
the Closing as though made at and as of that date, except as affected by
transactions contemplated hereby.
9.2. SHAREHOLDER'S COVENANTS. The Shareholders shall have performed all
covenants required by this Agreement to be performed by them on or before the
Closing.
10. TERMINATION. This Agreement by be terminated (1) by mutual consent
in writing; (2) by either the Shareholders or BTLY if there has been a material
misrepresentation or material breach of any warranty or covenant by any other
party; or (3) by either Shareholders or BTLY if the Closing shall not have taken
place within 15 days following execution of this Agreement, unless adjourned to
a later date by mutual consent in writing.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Shareholders and BTLY set out herein shall survive the
Closing.
12. ARBITRATION
12.1. SCOPE. The parties hereby agree that any and all claims (except
only for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the State of Nevada
12.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and any requests for injunctive or other
equitable relief) within the State of Nevada. Any award in arbitration may be
entered in any domestic or foreign court having jurisdiction over enforcement of
such awards.
12.3 APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the State of Nevada, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws.
12.4. DISCLOSURE AND DISCOVERY. The arbitrator may in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
12.5. RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much a possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
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12.6. FINALITY AND FEES. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically provided otherwise in this
agreement.
12.7. MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and/or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
12.8. COVENANT NOT TO XXX. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
12.9. INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them whenever arising,
whether in regard to this agreement or any other matter, from whatever the cause
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
12.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
13. GENERAL PROVISIONS
13.1. FURTHER ASSURANCES. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this agreement.
13.2. WAIVER. Any failure on the part of either party hereto to comply
with any of its obligation, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
13.3. BROKERS. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by brokers
or finders employed or alleged to have been employed by the indemnifying party.
13.4. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class certified mail, return receipt requested or recognized
commercial courier service as follows:
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If to BTLY, to:
Xxxxxx Xxx
000 Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
If to the Shareholders, to:
Xxxx X. Mustafoglu
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
13.5. GOVERNING LAW. This agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada.
13.6. ASSIGNMENT. This agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided.
However, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
13.7. COUNTERPARTS. This agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
13.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be the
law firm of Xxxxxxx and Xxxxxxxx, Las Vegas, Nevada. The Closing shall take
place upon the fulfillment by each party of all the conditions of Closing
required herein, but not later than 15 days following execution of this
agreement unless extended by mutual consent of the parties.
13.9. REVIEW OF THE AGREEMENT. Each party acknowledges that it has had
time to review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
13.10. SCHEDULES. All schedules attached hereto, if any shall be
acknowledged by each party by signature or initials thereon and shall be dated.
13.11. EFFECTIVE DATE. This effective date of this agreement shall be
upon its execution.
IN WITNESS WHEREOF, the parties have executed this agreement.
BENTLEY COMMUNICATIONS CORP.
By /s/ Xxxxxx Xxx
Xxxxxx Xxx, President
THE SHAREHOLDERS OF
KYRENIA ACQUISITION CORPORATION
By /s/ Xxxx X. Mustafoglu
Xxxx X. Mustafoglu
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EXHIBIT A
------------------------------- ---------------------------- ---------------------------- ----------------------------
Number of KAC to be exchanged Number of BTLY to be Name of Shareholder Address
received
------------------------------- ---------------------------- ---------------------------- ----------------------------
100% of all issued and 10,000 Xxxx Mustafoglu 0000 Xxxxxxx Xxxx Xxxx,
xxxxxxxxxxx Xxxxx 000
Xxx Xxxxxxx, XX
00000
------------------------------- ---------------------------- ---------------------------- ----------------------------
EXHIBIT B
STOCK ESCROW AND SECURITY AGREEMENT
THIS STOCK ESCROW AND SECURITY AGREEMENT (this "Agreement") is dated as
of March 8, 2000, by and among BENTLEY COMMUNICATIONS CORPORATION, a corporation
organized under the laws of the State of Nevada, U.S.A. (the "Company"), XXXX
XXXXXXXX, ESQ., on behalf of the shareholders of Kyrenia Acquisition Corp. (the
"Shareholders") and not personally, and H. XXXXX XXXXXXX, XX., a duly licensed
attorney who practices law in the State of North Carolina, U.S.A., as Escrow
Agent (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Company has agreed to purchase at a closing (the
"Closing"), 100% of the issued and outstanding shares of common stock, $.001 par
value per share (the "Securities") of Kyrenia Acquisition Corporation, a
Delaware corporation ("KAC"), which Securities represent a 100% ownership
interest in KAC as of the date hereof; and
WHEREAS, the purchase price (the "Purchase Price") for the Securities
is (x) US$225,000.00 in cash (the "Cash"), and (y) 10,000 non-restricted common
shares of the Company (the "Shares"), which is payable to the Shareholders PRO
RATA as hereinafter stated.
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WHEREAS, the parties have determined to utilize the escrow arrangement
described herein to effect the undertakings agreed to by the parties, including
without limitation delivery and payment of the Purchase Price; and
WHEREAS, the Escrow Agent is willing to act hereunder on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth below, the parties hereto hereby agree as follows:
1. ESCROW ACCOUNT.
1.1 DEPOSIT OF CASH. On or before the date of the Closing, by wire
transfer or delivery of certified funds, the Company shall deposit the cash with
the Escrow Agent, to be held in trust pending the Closing in accordance with the
terms and provisions of this Agreement. The parties hereto acknowledge that the
Closing shall not occur prior to the Escrow Agent's receipt of the Cash.
Notwithstanding the above, if the parties so elect the Company may deliver the
Cash to the trust account of Mr. Xxxx Xxxxxxxx, Esq., attorney for the
Shareholders, pursuant to the banking coordinates Xx. Xxxxxxxx shall provide.
1.2 DEPOSIT OF SHARES. On or before the date of the Closing, by
electronic transfer or by delivery of one or more certificates, the Company
shall deposit the Shares with the Escrow Agent, to be held by the Escrow Agent
in a separate brokerage account (the "Escrow Account") established with Wachovia
Securities, Inc. (the "Brokerage"), subject to the terms and provisions
contained herein. The parties hereto acknowledge that the Closing shall not
occur prior to the deposit of the Shares with the Escrow Agent.
1.3 DEPOSIT OF THE SECURITIES. On or before the date of the Closing, by
delivery of one or more certificates, Xx. Xxxxxxxx shall deposit the Securities
with the Escrow Agent, to be held by the Escrow Agent in trust pending the
Closing, subject to the terms and provisions contained herein. The parties
hereto acknowledge that the Closing shall not occur prior to the deposit of the
Securities with the Escrow Agent.
2. DISBURSEMENT OF SHARES.
2.1 DISBURSEMENT. None of the Cash, Shares or Securities
(collectively, the "Escrow") shall be disbursed other than in accordance with
the terms hereof, or in accordance with the written instructions of both the
Company and Xx. Xxxxxxxx delivered to the Escrow Agent. In no event shall the
Escrow Agent release or transfer any Cash, Shares or Securities to any party
other than to Xx. Xxxxxxxx or to the Company, as applicable, in accordance with
this Agreement, absent express written instructions from both such parties. The
Escrow shall be disbursed by the Escrow Agent under the following circumstances.
(a) Upon receipt of all of the Escrow, the Escrow Agent shall inform
each of the parties. Each party shall fax to the Escrow Agent fully executed
signature pages, then each party shall give the Escrow Agent verbal or written
authorization to release the Escrow as hereinafter stated. The Escrow Agent
shall deliver the required items to or at the instructions of Xx. Xxxxxxxx on
date of the Closing.
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2.2 CONTROVERSIES. If any controversy arises between two or more of
the parties hereto, or between any of the parties hereto and any person not a
party hereto, as to whether or not or to whom the Escrow Agent shall deliver
Cash, the Securities or the Shares or any portion thereof or as to any other
matter arising out of or relating to this Escrow Agreement, the Escrow Agent
shall not be required to determine the same and need not make any delivery of
the Escrow concerned or any portion thereof but may retain the same until the
rights of the parties to the dispute shall have been finally determined by
agreement or by final judgment of a court of competent jurisdiction after all
appeals have been finally determined (or the time for further appeals has
expired without an appeal having been made) (notwithstanding the above, the
provisions of the paragraph next above this one shall apply in all events
without exception). The Escrow Agent shall deliver that portion of the Escrow
concerned covered by such agreement or final order, if any is then held by the
Escrow Agent, within five (5) days after the Escrow Agent receives a copy
thereof. The Escrow Agent shall assume that no such controversy has arisen
unless and until it receives written notice from Xx. Xxxxxxxx and/or the Company
that such controversy has arisen, which refers specifically to this Agreement
and identifies the adverse claimants to the controversy.
2.3 NO OTHER DISBURSEMENTS. No portion of the Cash, Securities or
Shares shall be disbursed or otherwise transferred except in accordance with
this Section 2, Section 4 or Section 5.1(b).
3. ESCROW AGENT. The acceptance by the Escrow Agent of his duties
hereunder is subject to the following terms and conditions, which the parties to
this Agreement hereby agree shall govern and control with respect to the rights,
duties, liabilities and immunities of the Escrow Agent:
3.1 The Escrow Agent shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of any cash,
Shares, Securities, certificates, investments or other amounts deposited with or
held by the Escrow Agent.
3.2 The Escrow Agent shall be protected in acting upon any written
notice, certificate, instruction, request or other paper or document believed by
him to be genuine and to have been signed or presented by the proper party or
parties.
3.3 The Escrow Agent shall not be liable for any act done hereunder
except in the case of his reckless or willful misconduct or actions taken in bad
faith.
3.4 The Escrow Agent shall not be obligated or permitted to investigate
the correctness or accuracy of any document or to determine whether or not the
signatures contained in said documents are genuine or to require documentation
or evidence substantiating any such document or signature.
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3.5 The Escrow Agent shall have no duties as Escrow Agent except those
expressly set forth herein, and in any modification or amendment hereof;
provided, however, that no such modification or amendment hereof shall affect
his duties unless the Escrow Agent shall have given his written consent thereto.
The Escrow Agent shall not be prohibited from owning an equity interest in the
Company, the Shareholders, KAC, any of their respective subsidiaries or any
third party that is in any way affiliated with or conducts business with the
Company, the Shareholders, Xx. Xxxxxxxx or KAC.
3.6 The Company and Xx. Xxxxxxxx specifically acknowledge that the
Escrow Agent is a practicing attorney, and has or may have worked with the
Company, Xx. Xxxxxxxx, any placement agent or finder on the transaction, one or
more stockholders of the Company or of KAC, or affiliates of either of them on
other transactions, and that they and each of them has specifically requested
that the Escrow Agent draft some or all of the documents for the said
transactions and act as Escrow Agent as described in this Agreement with respect
to the said transactions. Each party represents that it has retained legal and
other counsel of its choosing with respect to the transactions contemplated
herein, and is satisfied in its sole discretion with the form and content of the
documentation drafted by the Escrow Agent. Without further disclosure of any
kind to any party, the Escrow Agent may own, and shall not be prohibited from
owning, an equity interest in the Company or KAC and/or may be an equity owner
or lender of the Shareholders or any other of the persons described herein, and
may increase or sell any such interest, so long as in accordance with applicable
law. The said parties hereby waive any objection to the Escrow Agent so acting
based upon conflict of interest, lack of impartiality or otherwise. The Escrow
Agent agrees to act impartially and in accordance with the terms of this
Agreement and with the parties' respective instructions, so long as they are not
in conflict with the terms of this Agreement.
4. TERMINATION. This Agreement shall terminate on the later of (a)
the date on which all of the Shares, Securities, Cash and any other escrowed
documents and things described herein shall have been fully disbursed in
accordance with the terms and conditions of this Agreement, (b) any other date
agreed to jointly by the Escrow Agent, Xx. Xxxxxxxx and the Company, or (c)
April 15, 2000.
5. MISCELLANEOUS.
5.1 INDEMNIFICATION OF ESCROW AGENT.
(a) The Company agrees to indemnify the Escrow Agent for, and to hold
him harmless against, any loss incurred without reckless or willful misconduct
or bad faith on the Escrow Agent's part, arising out of or in connection with
the administration of this Agreement, including the costs and expenses of
defending himself against any claim or liability in connection with the exercise
or performance of any of his powers or duties hereunder. This indemnification
shall not apply to a party with respect to a direct claim against the Escrow
Agent by such party alleging in good faith a breach of this Agreement by the
Escrow Agent, which claim results in a final non-appealable judgment against the
Escrow Agent with respect to such claim.
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(b) In the event of any dispute as to the nature of the rights or
obligations of the parties hereunder, the Escrow Agent may at any time or from
time to time interplead, deposit and/or pay all or any part of the Shares with
or to a court of competent jurisdiction sitting in Wake County, North Carolina
or in any appropriate federal court, in accordance with the procedural rules
thereof. The Escrow Agent shall give notice of such action to the other parties
hereto. Upon such interpleader, deposit or payment, the Escrow Agent shall
immediately and automatically be relieved and discharged from all further
obligations and responsibilities hereunder, including the decision to
interplead, deposit or pay such funds.
5.2 AMENDMENTS. This Agreement may be modified or amended only by a
written instrument executed by each of the parties hereto.
5.3 NOTICES. All communications required or permitted to be given under
this Agreement to any party hereto shall be sent by first class mail or
facsimile to such party at the address, of such party set forth on the signature
page of this Agreement.
5.5 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that the Escrow Agent shall not assign his duties under this
Agreement.
5.6 GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of North Carolina.
5.7 COUNTERPARTS. This Agreement may be executed in three or more
counterparts, each of which shall be an original, and all of which together
shall constitute one and the same agreement.
5.8 FACSIMILE. This Agreement may be accepted via facsimile, and a
facsimile transmission of the executed signature page hereof shall make this
Agreement legally binding upon the party so executing and faxing such signature
page to the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO ESCROW AGREEMENT DATED AS OF MARCH 8, 2000]
THE COMPANY:
BENTLEY COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx Xxx
--- --------------
Xx. Xxxxxx Xxx,
Duly Authorized Representative
/s/ Xxxx Xxxxxxxx
-----------------
Mr. Xxxx Xxxxxxxx, Esq. on behalf of
THE SHAREHOLDERS OF
KYRENIA ACQUISITION CORP.
ESCROW AGENT:
/s/ H. Xxxxx Xxxxxxx Xx.
------------------------
H. XXXXX XXXXXXX, XX., ESQ.
Address: 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx XXX 00000
Telephone 000.000.0000
Telecopier 919.785.3116
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