Exhibit 10.2
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Amendment No. 1
to
Amended and Restated
Agreement and Plan of Merger
among
Base Ten Systems, Inc.
Newco B10, Inc.
and
ConvergenceHealth.com
March 12, 2002
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AMENDMENT NO. 1
TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER, dated as of March 12, 2002 (this "Amendment"), by and among Base Ten
Systems, Inc., a New Jersey corporation having its principal office at 535 East
County Line Road, Suite 16, Lakewood, New Jersey 08701 ("Base Ten"), Newco B10,
Inc., a Nevada corporation wholly-owned by Base Ten having its principal office
at 535 East County Line Road, Suite 16, Lakewood, New Jersey 08701 ("Newco," and
together with Base Ten, the "Purchasers") and ConvergenceHealth.com, a Nevada
corporation having its principal office at 774 Mays Boulevard, Suite 386,
Incline Village, Nevada 89451 (the "Company," and together with the Purchasers,
the "Parties").
WHEREAS, the Parties entered into an Agreement and Plan of
Merger, dated as of January 18, 2002 (the "Original Merger Agreement");
WHEREAS, the Parties subsequently entered into an Amended and
Restated Agreement and Plan of Merger, executed on February 1, 2002 and
effective as of January 18, 2002 (the "Amended and Restated Merger Agreement");
WHEREAS, the Parties desire to further amend the terms of the
Amended and Restated Merger Agreement and to have the Original Merger Agreement
and the Amended and Restated Merger Agreement, as amended hereby, continue in
full force and effect;
WHEREAS, Section 8.2 of the Amended and Restated Merger
Agreement provides that the Parties may amend the Amended and Restated Merger
Agreement so long as such amendment is set forth in writing and is executed by
the Parties;
WHEREAS, the Amended and Restated Merger Agreement
contemplates a transaction in which (i) Newco will merge with and into the
Company (the "Merger") pursuant to the Amended and Restated Merger Agreement and
the Plan of Merger (as defined in Section 1.1 of the Amended and Restated Merger
Agreement) and the applicable provisions of the laws of State of Nevada, (ii)
immediately preceding the effective time of the Merger, Base Ten will effect a
one for one thousand share combination of the outstanding shares of Base Ten
Class A Common Stock and Class B Common Stock (the "Share Combination"), (iii)
after the effective time of the Merger, Base Ten will change its state of
incorporation from New Jersey to Nevada by means of a merger with and into a
wholly-owned Nevada subsidiary of Base Ten formed solely for the purpose of
effecting such change (the "Reincorporation"), (iv) Base Ten will issue certain
merger consideration, and (v) Base Ten will own such number of shares of the
capital stock of the Company that will constitute all of the outstanding capital
stock of the Company;
WHEREAS, the Boards of Directors of each of Base Ten, Newco,
and the Company have duly approved this Amendment and the transactions
contemplated hereby; and
WHEREAS, unless otherwise stated, capitalized terms contained
herein have the meanings set forth in the Amended and Restated Merger Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements set forth in this Amendment, the Parties hereby agree
as follows:
SECTION 1. Supplemental Investment in the Company.
(a) Prior to or concurrent with the execution of this
Amendment, Base Ten, which purchased 800,000 shares of the Company's Series A-3
Preferred Stock upon the closing of the Original Merger Agreement, shall
purchase an additional 200,000 shares of the Company's Series A-3 Preferred
Stock (the "February BT Purchased Shares") for an aggregate purchase price of
$50,000 ($0.25 per share), on the terms and conditions set forth in the February
Purchase Agreement, dated as of the date hereof, by and among Base Ten and the
Company, substantially in the form of Exhibit A annexed hereto.
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(b) The parties agree that wherever the term "BT Purchased
Shares" is used in the Amended and Restated Merger Agreement, such reference
shall also include the February BT Purchased Shares.
SECTION 2. Amendment to Certificate of Incorporation. The
Parties agree that, subject to the approval of the shareholders of Base Ten,
Article 8 of Base Ten's Certificate of Incorporation shall be amended to read in
its entirety as follows:
Any merger, consolidation of the corporation, or sale, lease,
exchange or other disposition of all, or substantially all,
the assets of the corporation, if not in the usual and regular
course of its business as conducted by the corporation, shall
require the affirmative vote of two-thirds of the votes cast
by holders of share entitled to vote thereon.
SECTION 3. Merger Consideration. Section 1.4(b)(i) of the
Amended and Restated Merger Agreement is hereby amended to read, in its
entirety, as follows:
(i) Each share of the Capital Stock of the
Company issued and outstanding immediately prior to the
Effective Time, excluding any treasury shares and shares to be
canceled pursuant to this Agreement (collectively, the
"Company Shares"), shall be converted at the Effective Time,
subject to the Share Combination to occur prior to the
issuance of the Merger Consideration, into the right to
receive 0.001919 shares (as may be adjusted from time to time
based upon the actual number of fractional shares of Base Ten
Common Stock repurchased by Base Ten as a result of the Share
Combination; the "Exchange Ratio") of Base Ten Class A Common
Stock (the "Merger Consideration"). Each certificate
representing the Merger Consideration shall be stamped or
otherwise imprinted with a restrictive legend indicating that
the shares represented by such certificate have not been
registered under the Securities Act and are not transferable
unless subject to registration or an exemption therefrom, as
set forth in an Opinion of Counsel acceptable to Base Ten. At
the Effective Time, stockholders of the Company immediately
prior to the Effective Time will own approximately 75% of the
post merger outstanding shares of Base Ten and stockholders of
Base Ten immediately prior to the Effective Time will own
approximately 25% of the post merger outstanding shares of
Base Ten, subject to the Share Combination All shares of
Capital Stock of the Company owned directly or indirectly by
the Company shall be canceled and retired and shall cease to
exist and no capital stock of Base Ten, cash or other
consideration shall be paid or delivered in exchange therefor.
SECTION 4. Cash Equivalents. Section 6.2(n) of the Amended
and Restated Merger Agreement is hereby amended to read, in its entirety, as
follows:
(n) On the Closing Date, Base Ten shall
have cash or cash equivalents of no less than $400,000.00 in
the accounts identified on Schedule 3.21 after the payment of
all current liabilities payable in the ordinary course of
business excluding $116,000 not expected to be paid, and the
payment of liabilities reflected as due upon the consummation
of the Merger on Schedule 3.15.
SECTION 5. Change of Control Payment.
(a) Schedule 3.15 to the Amended and Restated Merger
Agreement is deleted and replaced in its entirety with Schedule 3.15 attached to
this Amendment.
(b) Base Ten shall pay the Change of Control Payment (as
set forth on Schedule 3.15) to Kenneth W. Riley, the Chief Financial Officer of
Base Ten, in cash, as follows: $30,000 shall be paid by Base Ten to Mr. Riley on
or before the date of this Amendment, and the balance of $90,000 of the Change
of Control Payment shall be paid in full to Mr. Riley at the effective time of
the Merger.
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SECTION 6. Events of Termination. Section 7.1(b) and Section
7.1(c) of the Amended and Restated Merger Agreement are hereby amended to read,
in their entirety, as follows:
(b) by either Base Ten or the Company if the
Merger shall not have been consummated on or before April 30,
2002, provided the terminating party is not otherwise in
material breach of its obligations under this Agreement;
(c) by either Base Ten or the Company if this
Agreement is not approved at the 2002 annual meeting of the
stockholders of Base Ten or at such other meeting of the
stockholders of Base Ten held prior to April 30, 2002;
SECTION 7. Miscellaneous.
(a) Waivers, Amendments to be in Writing. No waiver,
amendment, modification or supplement of this Amendment will be binding upon a
Party unless such waiver, amendment, modification or supplement is set forth in
writing and is executed by such Party.
(b) Successors and Assigns. Except as otherwise expressly
provided in this Amendment, all covenants and agreements set forth in this
Amendment by or on behalf of the Company and Base Ten will bind and inure to the
benefit of the respective successors and assigns of the Company and Base Ten,
whether so expressed or not. Notwithstanding the foregoing, neither this
Amendment nor any of the rights, interests or obligations hereunder may be
assigned by either party without the prior written consent of the other party.
(c) Governing Law. This Amendment will be governed by and
construed in accordance with the domestic laws of the State of New Jersey,
without giving effect to any choice of law or conflict rule of any jurisdiction
that would cause the laws of any other jurisdiction to be applied. In
furtherance of the foregoing, the internal law of the State of New Jersey will
control the interpretation and construction of this Amendment, even if under any
choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
(d) Jurisdiction. Each of the Parties hereby (i)
irrevocably submits to the jurisdiction of the state courts of, and the federal
courts located in, the State of New Jersey in any action or proceeding arising
out of or relating to, this Amendment, (ii) waives, and agrees to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or proceeding,
any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment or
execution, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Amendment or the subject matter hereof may not be enforced in or by such court,
and waives and agrees not to seek any review by any court of any other
jurisdiction which may be called upon to grant an enforcement of the judgment of
any such court.
(e) Ratification; Interpretation. Except as expressly
modified by this Amendment, the Amended and Restated Merger Agreement shall
remain in full force and effect, and its terms and provisions are hereby
ratified and affirmed in all respects. Without limiting the generality of the
foregoing, the parties agree that in the event of a conflict between any
provision of the Amended and Restated Merger Agreement and this Amendment, the
provisions of this Amendment shall control.
(f) Severability of Provisions. If any provision of this
Amendment is held to be invalid for any reason whatsoever, then such provision
will be deemed severable from the remaining provisions of this Amendment and
will in no way affect the validity or enforceability of any other provision of
this Amendment.
(g) Counterparts. The Parties may execute this Amendment
in separate counterparts (no one of which need contain the signatures of all
Parties), each of which will be an original and all of which together will
constitute one and the same instrument.
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(h) Headings. The headings used in this Amendment are for
the purpose of reference only and will not affect the meaning or interpretation
of any provision of this Amendment.
IN WITNESS WHEREOF, the Parties have executed this Amendment
as of March 12, 2002.
CONVERGENCEHEALTH.COM
By: ________________________________
Name: Byron Gehring
Title: Chief Executive Officer
BASE TEN SYSTEMS, INC.
By: _______________________________
Name: Kenneth W. Riley
Title: Chief Financial Officer
NEWCO B10, INC.
By: _________________________________
Name: Kenneth W. Riley
Title: President
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Exhibit A
FORM OF FEBRUARY PURCHASE AGREEMENT
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Agreement and Plan of Merger
Base Ten Systems, Inc., Newco B10, Inc. and ConvergenceHealth.com
Schedule 3.15
Employees of Base Ten
Change of Control Agreement
In accordance with an agreement between Base Ten and Kenneth W. Riley, the Chief
Financial Officer of Base Ten, this transaction between Base Ten and
ConvergenceHealth.com will give rise to a payment in the amount of $120,000 (the
"Change of Control Payment")
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