EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Agreement made, effective as of January 1, 2000 by and between Bentley
Communications Corp., a corporation organized and existing under the laws of the
State of Florida, with its principal office located at 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxx Xxxxx, Xxxxxxxxxx 00000, referred to in this Agreement as
"Employer", and/or "Company", and Xxxxxx Xxxxxx, Ph.D., of 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, referred to in this Agreement as "Employee".
In consideration of the mutual covenants and promises of the parties to this
Agreement, and in consideration of the services rendered by Employee prior to
the effective date of this Agreement, Employer and Employee agree as follows:
SECTION ONE
EMPLOYMENT
Employer employs Employee in an executive capacity and Employee accepts such
employment with Employer, subject to the terms and conditions of this Agreement.
SECTION TWO
TERM OF EMPLOYMENT
This Agreement and the employment under this Agreement shall commence on the
effective date stated above, and continue until the end 12:00 midnight US
Pacific Time on December 31, 2001.
SECTION THREE
DUTIES OF EMPLOYEE
Employee will serve Employer faithfully and to the best of his ability under the
direction of the board of directors of Employer. Employee will devote all of his
time, energy, and skill during regular business hours to such employment.
Employee shall perform such services and act in such executive capacity as the
board of directors of Employer shall direct.
SECTION FOUR
COMPENSATION
A. Employee's salary shall be at the rate of $5,000 per month, less appropriate
taxes and other deductions as agreed to by Employee, payable on the first and
fifteenth of each month in two increments until the end of the term of this
Agreement.
B. Employer shall issue Three Hundred Thousand (300,000) common shares of
Bentley Communications Corp. pursuant to Rule 701, promulgated under the
Securities Act of 1933, as amended, within 120 days of the date of this
agreement.
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SECTION FIVE
FAILURE TO PAY EMPLOYEE
The failure of Employer to pay Employee his salary as provided in Section Four
may, in Employee's sole discretion be deemed a breach of this Agreement, and
unless such breach is cured within [30] days after written notice to Employer,
this employment Agreement shall terminate, including the noncompetition
provisions of Sections Twelve and Thirteen.
SECTION SIX
VALUATION OF COMMON STOCK
A. The common stock of Employer deliverable to Employee pursuant to Section Four
shall be valued at $1.00 per share if there was no public market in such common
stock during the period for which such stock represents payment.
B. The common stock of Employer deliverable to Employee pursuant to Section Four
shall be valued at 50% of the average market price of such common stock during
the period for which such stock represents payment, if there was a public market
in such common stock during such period.
C. A public market in such common stock shall be deemed to have existed during a
period if during the last six months of such period the National Daily Quotation
Service regularly published prices of such common stock in its so-called "pink
sheets" or any member firm of the National Association of Securities Dealers
regularly quoted prices for such stock.
D. Average market price shall be determined by taking the mean between the high
bid and the low asked prices of the common stock of Employer on each of the last
three days of each month during such period for which such prices were published
by the National Association of Securities Dealers chosen for such purposes by
Employer with Employee's approval, which approval shall not be unreasonably
withheld, and by averaging such means as so determined.
SECTION SEVEN
SALE OF EMPLOYEE'S COMMON STOCK
A. Employee agrees that he will not sell or otherwise dispose of all or any part
of the common stock of Employer delivered pursuant to Section Four unless
Employee shall have received an opinion of counsel, in form and substance
satisfactory to counsel for Employer (each party to bear the expense of its own
counsel), to the effect that registration of the shares to be sold or disposed
of is not required under the Securities Act of 1933, as amended, or unless there
shall be in effect a registration statement under such act with respect to such
proposed sale or disposition of the shares to be sold or disposed of and
Employee shall have complied with all applicable provisions of such act and the
rules and regulations under such act.
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B. All certificates issued to represent the common stock delivered to Employee
may bear the following legend: "The shares represented by this certificate are
the subject of an Agreement, dated as of January 1, 2000, a copy of which is on
file at the principal office of Bentley Communications Corp., and may not be
transferred, sold, or otherwise disposed of except in accordance with the terms
of such Agreement."
C. Employer is authorized to instruct its transfer agent to refuse to transfer
such stock certificates except in accordance with the terms of this Agreement.
SECTION EIGHT
OPTION TO PURCHASE COMMON STOCK
Concurrently with the execution of this Agreement, Employer shall deliver to
Employee an option to purchase Four Hundred Thousand (400,000) shares of the
common stock of Employer for the purchase price of Two Dollars ($2.00) per
share, which option is in the form of Exhibit A, attached to this Agreement,
and, by this reference, made part of this Agreement as fully and to the same
effect as if set forth in this Agreement in its entirety.
SECTION NINE
REIMBURSEMENT FOR EXPENSES
Employer shall reimburse Employee for reasonable out-of-pocket expenses that
Employee shall incur in connection with his services for Employer contemplated
by this Agreement, on presentation by Employee of appropriate vouchers and
receipts for such expenses to Employer.
SECTION TEN
EMPLOYEE'S SERVICE AS DIRECTOR
Employee consents to serve as a director of Employer or any parent, subsidiary,
or corporation affiliated with Employer, on condition that Employee receive the
same compensation paid to other directors of any such company for their services
as directors.
SECTION ELEVEN
TERMINATION
A. This Agreement may be terminated on [30] days' written notice to Employee by
Employer if Employee fails to perform or to comply with any material term or
condition of this Agreement, or if the holders of the preferred stock of
Employer acquire and exercise the right to choose a majority of the board of
directors of Employer and a majority of the newly elected board of directors
vote to terminate such employment, but in such event, if Employee has performed
or complied with all the material terms and conditions of this Agreement, the
noncompetition provisions of Sections Twelve and Thirteen shall not apply.
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B. If Employee shall fail or be unable to perform the services required under
this Agreement, because of any physical or mental infirmity, and such failure or
inability shall continue for three consecutive months, or for six months during
any consecutive twelve month period, Employer shall have the right to terminate
this Agreement 90 days after delivering written notice of such termination to
Employee, provided, however, that Employee shall continue to receive his full
compensation under this Agreement to the date of termination, in spite of any
such infirmity. The noncompetition provisions of Sections Twelve and Thirteen
shall continue in effect in spite of such termination of this Agreement, but if,
after recovery from such infirmity as evidenced by a medical certificate of a
physician of Employer, Employer does not choose to hire Employee in some
executive capacity, the noncompetition provisions of Sections Twelve and
Thirteen, if still in effect, shall cease to be operative. Upon such
termination, any common stock issuable under this agreement will be issued on a
prorated basis as of the last day of employment.
SECTION TWELVE
NONCOMPETITION AFTER TERMINATION
Employee agrees that, in addition to any other limitation, for a period of one
year after the termination of his employment under this Agreement, except a
termination caused by Employer in violation of the terms of this Agreement, and
unless otherwise specified in this Agreement, Employee will not directly or
indirectly engage in, or in any manner be connected with or employed by any
person, firm, corporation, or other entity in competition with Employer or
engaged in providing Business-to-Business E-Commerce Internet Services within a
radius of 250 miles of any office of Employer, its affiliates or its
subsidiaries.
SECTION THIRTEEN
SOLICITATION AFTER TERMINATION
Employee agrees that, in addition to any other limitation, for a period of five
years after the termination of his employment under this Agreement, except a
termination caused by Employer in violation of the terms of this Agreement, and
unless otherwise specified in this Agreement, Employee will not, on behalf of
himself or on behalf of any other person, firm, corporation, or other entity,
call on any of the customers of Employer, or any of its affiliates or
subsidiaries for the purpose of soliciting and/or providing to any of such
customers any Business-to-Business E-Commerce or ISP Internet Services, nor will
he, in any way, directly or indirectly, for himself or on behalf of any other
person, firm, corporation, or other entity solicit, divert, or take away any
customer of Employer, its affiliates or its subsidiaries.
SECTION FOURTEEEN
USE OF CONFIDENTIAL INFORMATION
Employee agrees that, in addition to any other limitation contained in this
Agreement, regardless of the circumstances of the termination of employment, he
will not communicate to any person, firm, corporation, or other entity any
information relating to customer lists, prices, secrets, advertising, nor any
confidential knowledge or secrets that Employee might from time to time acquire
with respect to the business of the Employer, or any of its affiliates or
subsidiaries.
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SECTION FIFTEEN
INJUNCTIVE RELIEF
Employee acknowledges that the services to be rendered under this Agreement are
of a unique, special, and extraordinary character that would be difficult or
impossible for Employer to replace, and by reason of such difficulty, Employee
agrees that for violation of any of the provisions of this Agreement, Employer
shall, in addition to any other rights and remedies available under this
Agreement, at law or otherwise, be entitled to an injunction to be issued by any
court of competent jurisdiction enjoining and restraining Employee from
committing any violation of this Agreement, and Employee consents to the
issuance of such injunction.
SECTION SIXTEEN
COMMUNICATIONS TO EMPLOYER
A. From the time this Agreement commences until the termination of this
Agreement, Employee shall communicate and channel to Employer all knowledge,
business, and customer contacts and any other matters of information that could
concern or be in any way beneficial to the business of Employer, whether
acquired by Employee before or during the term of this Agreement, provided,
however, that nothing under this Agreement shall be construed as requiring such
communications where the information is lawfully protected from disclosure as a
trade secret of a third party.
B. Any such information communicated to Employer as stated above shall be and
remain the property of Employer, in spite of the subsequent termination of this
Agreement.
SECTION SEVENTEEN
TERMINATION BY EMPLOYEE
If Employer shall cease conducting its business, take any action looking toward
its dissolution or liquidation, make an assignment for the benefit of its
creditors, admit in writing its inability to pay its debts as they become due,
file a voluntary or be the subject of an involuntary petition in bankruptcy, or
be the subject of any state or federal insolvency proceeding of any kind, then
the Employee may, in his sole discretion, by written notice to Employer,
terminate his employment and Employer consents to the release of Employee under
such circumstances and agrees that if Employer ceases to operate or to exist as
a result of such event, the noncompetition and other provisions of Sections
Twelve through Fourteen of this Agreement shall terminate.
SECTION EIGHTEEN
BINDING EFFECT
This Agreement shall be binding on and shall inure to the benefit of any
successor or successors of Employer and the personal representatives of
Employee.
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SECTION NINETEEN
LAW TO GOVERN CONTRACT
It is agreed that this Agreement shall be governed by, construed, and unforced
in accordance with the laws of the State of California.
SECTION TWENTY
ENTIRE AGREEMENT
This Agreement shall constitute the entire Agreement between the parties and
supersedes any prior written or oral contract, understanding or representation
of any kind.
SECTION TWENTY-ONE
MODIFICATION OF AGREEMENT
Any modification of this Agreement or additional obligation assumed by either
party in connection with this Agreement shall be binding only if evidenced in
writing signed by each party or an authorized representative of each party.
SECTION TWENTY-TWO
NO WAIVER
The failure of either party to this Agreement to insist upon the performance of
any of the terms and conditions of this Agreement, or the waiver of any breach
of any of the terms and conditions of this Agreement, shall not be construed as
waiving any such terms and conditions, but the same shall continue and remain in
full force and effect as if no such forbearance or waiver had occurred.
SECTION TWENTY-THREE
ATTORNEY FEES
In the event that any action is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition
to all the sums that either party may be called on to pay, a reasonable sum for
the successful party's attorney's fees.
SECTION TWENTY-FOUR
NOTICES
Any notice provided for or concerning this Agreement shall be in writing and
shall be deemed sufficiently given when sent by certified or registered mail if
sent to the respective address of each party as set forth at the beginning of
this Agreement.
In witness of the above, each party to this Agreement has caused it to be
executed at Los Angeles County in the State of California on the date indicated
below.
/s/ Xxxxxx X. Xxx Dated: JANUARY 1, 2000
----------------- ------ ---------------
Xxxxxx X. Xxx, President
Bentley Communications Corp.
/s/ Xxxxxx Xxxxxx Dated: JANUARY 1, 2000
----------------- ------ ---------------
Xxxxxx Xxxxxx, Vice-president
Bentley Communications Corp.
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EXHIBIT "A"
EMPLOYEE STOCK OPTION AGREEMENT
Option agreement made, effective as of January 1, 2000, by and between Bentley
Communications Corp., a corporation organized and existing under the laws of the
State of Florida with its principal office located at 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxx Xxxxx, Xxxxxxxxxx 00000, referred to in this Agreement as
"Employer", and/or "Company", and Xxxxxx Xxxxxx of 0000 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, referred to in this Agreement as "Employee".
RECITALS
The corporation desires, by affording the employee an opportunity to purchase
its common shares, as provided in this agreement, to carry out the purpose of
the stock option plan of the corporation approved by its shareholders.
In consideration of the matters described above, and of the mutual benefits and
obligations set forth in this agreement, the parties agree as follows:
SECTION ONE
GRANT OF OPTION
The corporation irrevocably grants to the employee the right and option (the
option), to purchase upon vesting all or any part of up to Four Hundred Thousand
(400,000) common shares (this number being subject to adjustment as provided in
Section Seven of this agreement) on the terms and conditions set forth in this
agreement, and subject to the following schedule of vesting:
March 31, 2000 50,000 options
June 30, 2000 50,000 options
September 30, 2000 50,000 options
December 31, 2000 50,000 options
March 31, 2001 50,000 options
June 30, 2001 50,000 options
September 30, 2001 50,000 options
December 31, 2001 50,000 options
SECTION TWO
PURCHASE PRICE
The purchase price of the common shares covered by the option shall be Two
Dollars ($2.00) per share.
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SECTION THREE
TERM OF OPTION
Any options granted under this agreement, whether they have vested or not, will
expire thirty (30) days after termination of the employee's employment. The
corporation shall determine the date when the employment of the employee
terminated.
SECTION FOUR
NONTRANSFERABILITY
This option shall not be transferable, and the option may be exercised, during
the lifetime of the employee, only by the employee. More particularly (but
without limiting the generality of the foregoing), the option may be not be
assigned, transferred, pledged or hypothecated in any way, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the option contrary to these provisions,
and the levy of any execution, attachment or similar process on the option,
shall be null and void.
SECTION FIVE
EMPLOYMENT
In consideration of the granting of the option, and regardless of whether or not
the option shall be exercised, the employee will devote his entire time, energy
and skill to the service of the corporation or one or more of its subsidiaries,
subject to vacation, sick leave and other approved absences.
SECTION SIX
DEATH OF EMPLOYEE
If the employee dies before exercising the option, the option shall expire and
lapse, and may no longer be exercised.
SECTION SEVEN
CHANGES IN CAPITAL STRUCTURE
If all or any portion of the option shall be exercised subsequent to any share
dividend, split-up, recapitalization, merger, consolidation, combination or
exchange of shares, separation, reorganization or liquidation occurring after
the date of this agreement, as a result of which shares of any class shall be
issued in respect of outstanding common shares, or common shares shall be
changed into the same or a different number of shares of the same or another
class or classes, the person or persons so exercising the option shall receive
the aggregate number and class of shares which, if common shares (as authorized
at the date of this agreement) had been purchased at the date of this agreement
for the same aggregate price (on the basis of the price per share set forth in
Section Two of this agreement) and had not been disposed of, such person or
persons would be holding, at the time of such exercise, as a result of such
purchase and all such share dividends, split-ups, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, separations,
reorganizations or liquidations; provided, however, that no fractional share be
issued on any such exercise, and the aggregate price paid shall be appropriately
reduced on account of any fractional share not issued.
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SECTION EIGHT
METHOD OF EXERCISING OPTION
Subject to the terms and conditions of this option agreement, this option may be
exercised by written notice to the corporation, mailed or personally delivered
to the corporation at the following address: 000 Xxxxxxxxx Xxxx., Xxxxx 0000,
Xxxx Xxxxx, XX 00000. Such notice shall state the election to exercise the
option and the number of shares in respect of which it is being exercised, and
shall be signed by the person or persons so exercising the option. The notice
shall either: (a) be accompanied by payment of the full purchase price of the
shares, in which event the corporation shall deliver a certificate or
certificates representing the shares as soon as practicable after the notice
shall be received; or (b) fix a date (not less than five (5) nor more than ten
(10) business days from the date such notice is to be received by the
corporation) for the payment of the full purchase price of the shares against
delivery of a certificate or certificates representing the shares. Payment of
the purchase price shall, in either case, be made by check payable to the order
of the corporation. The certificate or certificates for the shares as to which
the option shall have been exercised shall be registered in the name of the
employee and another person jointly, with right of survivorship, and shall be
delivered as provided above to or on the written order of the person or persons
exercising the option. All shares that shall be purchased on the exercise of the
option as provided in this agreement shall be fully paid and nonassessable.
SECTION NINE
RESERVATION OF SHARES TO SATISFY OPTION
The corporation shall at all times during the term of the option reserve and
keep available such number of common shares as will be sufficient to satisfy the
requirements of this option agreement.
SECTION TEN
SUBSIDIARY
As used in this agreement, the term "subsidiary" shall mean any present or
future corporation that would be a "subsidiary corporation" of the corporation,
as that term is defined in Section 424 of the Internal Revenue Code of 1986.
/s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx, Ph.D.
/s/ Xxxxxx Xxx
--------------
Xxxxxx Xxx, President
Bentley Communications Corp.
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