EXHIBIT 10.4
LICENSE AGREEMENT
Effective November 6, 2003, Xxxxx Barter Services, Inc. (hereinafter
"XXXXX"), and Bentley Communications Corp. (hereinafter "BENTLEY"), (hereinafter
referred to individually as the "PARTY" or collectively as the "PARTIES") agree
as follows:
ss. 1. TYPE OF AGREEMENT. This document is an Agreement by which Xxxxx licenses
its business methods to Bentley and Bentley agrees to acquire the License
Rights, as defined inSS.2, below, subject to the terms and conditions contained
herein.
ss. 2. DEFINITIONS. In this Agreement, the following definitions shall govern,
except as otherwise provided:
(a) "AGREEMENT" means this License Agreement;
(b) "BARTER FEES" means any transaction fees, commissions or
revenues earned through the operation of the Xxxxx Barter
System whether in United States Currency or US $ denominated
barter currency;
(c) "BUSINESS METHODS" means the business, relationships and
methodologies for clearing transactions between barter
exchanges used in the operation of the Xxxxx Barter System,
including the know-how, technology, marketing and fiscal
management of the trade currency used to facilitate these
transactions and the barter currency clearinghouse practices;
(d) "CLOSING DATE" means November 15, 2003 or such earlier date as
agreed to in writing the by Parties hereto;
(e) "XXXXX AFFILIATE FLOAT" means the float that is determined by
offsetting the positive and negative balances of the Xxxxx
Affiliates' ledger accounts. The current Xxxxx Affiliate Float
is the aggregate of the net negative balances shown on Exhibit
"A" and "B" hereto;
(f) "XXXXX AFFILIATES" means the affiliates participating in the
Xxxxx Barter System, currently consisting of over 185
affiliates, and such other affiliates as may join the Xxxxx
Barter System during the term of this Agreement or any renewal
hereof;
(g) "XXXXX BARTER SYSTEM" means the barter system operated by
Xxxxx since 1998 under the name of "XXXXX BARTER" and
utilizing the website "XXX.XXXXXXXXXXX.XXX" for exchange to
exchange transaction management facilitating the purchase and
sale of goods and services between exchanges and, ultimately,
their members;
(h) "LICENSE FEE" means the one-time issuance of 10,000,000 common
shares in the capital stock of Bentley, with a stated value of
$0.01 per share, together with a payment of thirty thousand
($30,000) dollars in United States Currency payable at Closing
and the ongoing Royalty Fee, as defined below;
(i) "LICENSE RIGHTS" means the sole and exclusive rights to the
Business Methods; and
(j) "RECORD KEEPING DUTIES" means the sole and exclusive
responsibility for management of the Xxxxx Barter System and
record keeping for all transactions between the Xxxxx
Affiliates, as more particularly set forth in Section (SS.) 4
hereof; and
(k) "ROYALTY FEE" means the greater of three (3%) percent of the
Barter Fees collected by Bentley hereunder or $5,000 during
any fiscal quarter, whichever is greater, such Royalty Fee not
to exceed $10,000 per fiscal quarter.
ss. 3. GRANT OF LICENSE. Xxxxx hereby grants to Bentley and Bentley hereby
agrees to pay the License Fee for and in consideration of the License Rights.
ss. 4. ASSUMPTION OF RECORD KEEPING DUTIES. In connection with the granting by
Xxxxx of the License Rights hereunder, Bentley agrees to assume the Record
Keeping Duties, as follows:
(a) maintaining the ledger accounts for each Xxxxx Affiliate;
(b) facilitating and recording barter transactions between the
Xxxxx Affiliates; and
(c) maintaining the Xxxxx Affiliate Float by ensuring that the
aggregate float remains substantially unchanged, unless
otherwise mandated by the board of directors of Xxxxx.
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ss. 5. FIDUCIARY RELATIONSHIP. The Parties hereto acknowledge and agree that the
assumption of the Record Keeping Duties by Bentley creates a fiduciary
relationship between Bentley and the Xxxxx Affiliates, in a manner similar to
the fiduciary relationship between a bank and its depositors.
ss. 6. XXXXX AFFILIATE FLOAT. Bentley acknowledges and agrees that the Xxxxx
Affiliate Float is the property of the Xxxxx Affiliates and must be maintained
for the benefit of the Xxxxx Affiliates.
ss. 7. LEDGER BALANCES. Xxxxx confirms that the ledger balances of the Xxxxx
Affiliates are correct as of the Effective Date, as more particularly set out in
Exhibits "A" and "B" attached to this Agreement.
ss. 8. NEGATIVE FLOAT. The Parties hereto acknowledge that as of the Effective
Date the Xxxxx Affiliates owed more to the Xxxxx Affiliate Float than the Xxxxx
Affiliate Float owed to the Xxxxx Affiliates, resulting in a negative float
balance.
ss. 9. ASSIGNMENT OF BARTER FEES. As compensation for the assumption of the
Record Keeping Duties by Bentley, Xxxxx hereby agrees to assign to Bentley all
right, title and interest in and to the Barter Fees earned during the term of
this Agreement.
ss. 10. DISCLOSURE OF BUSINESS METHODS. Within thirty (30) days after the
Closing Date, Xxxxx shall provide to Bentley detailed information related to the
Business Methods and the Record Keeping Duties. Nothing in this Agreement shall
be construed to require Xxxxx to provide any information that is not part of the
Business Methods or Record Keeping Duties.
ss. 11. ACCESS TO NEW INFORMATION. During the term of this Agreement and any
extension or renewal hereof, Xxxxx shall continue to allow Bentley access to any
new information or practices forming a part of the Business Methods or Record
Keeping Duties. Xxxxx shall, during the term of this Agreement, upon prior
written request by Bentley, disclose to Bentley's designated representative,
without unjustified delay, any information forming part of the Business Methods
or Record Keeping Duties as requested by Bentley. Such requests shall, in each
case, be for specific information related to the Business Methods or Record
Keeping Duties and to fully explain the Business Methods or Record Keeping
Duties, if necessary. The obligation of Xxxxx to answer such requests shall be
limited to any information, to cause each such request to be fully and fairly
answered to the best of the ability of Xxxxx.
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ss. 12. SERVICES OF XXXXX PERSONNEL. Xxxxx shall, during the term of this
Agreement, upon prior written request of Bentley, make available to Bentley,
without charge, at the offices or other facilities of Bentley, the services of
the personnel of Xxxxx who are familiar with the Business Methods, for
consultation and advice concerning the Business Methods.
ss. 13. EXCLUSION OF THIRD PARTY INFORMATION. Xxxxx shall not be required to
furnish to Bentley any information that Xxxxx receives or has received from
third parties, which information Xxxxx may not lawfully disclose, or the
utilization of which requires the payment of royalties by Xxxxx to third
parties. Nor shall Xxxxx be required to furnish to Bentley any information
regarding business methods or practices that Xxxxx develops for, or develops in
cooperation with, third parties.
ss. 14. INCLUSION OF INFORMATION RELATED TO BUSINESS METHODS. If, during the
term of this Agreement, Xxxxx shall conceive, make or acquire any information or
practices relating to the Business Methods or Record Keeping Duties, or useful
in the carrying out of the Xxxxx Barter System, Xxxxx shall, with reasonable
promptness, advise Bentley, in writing, setting out the details of such
information.
ss.15. PAYMENT OF LICENSE FEE. Bentley shall pay the License Fee to Xxxxx, as
follows:
(a) within 10 days of the Closing Date, Bentley shall issue and
deliver to Xxxxx a share certificate for 10,000,000 common
shares in the capital stock of Bentley, registered in the name
of Xxxxx, and subject only to the restrictions imposed by Rule
144.
(b) on the Closing Date, Bentley shall deliver to Xxxxx a check in
the sum of thirty thousand ($30,000) dollars of United States
Currency, payable to Xxxxx, representing the initial portion
of the License Fee;
(c) within thirty (30) days after the end of each fiscal quarter,
Bentley shall deliver a check to Xxxxx representing the
Royalty Fee. Bentley shall provide a written report to Xxxxx
of the exact amount of Barter Fees earned during the fiscal
quarter just ended;
(d) No taxes or other charges imposed on Bentley with respect to
or based upon such payments by or under the authority of any
government, treaty organization, or subdivision of either,
shall be deducted from the payment of Royalty Fees or License
Fee to Xxxxx.
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ss. 16. CONFIDENTIAL INFORMATION. During the term of this Agreement and for
three years thereafter, Bentley shall take all reasonable care to keep
confidential all information relating to the Business Methods acquired in any
manner from Xxxxx and shall not disclose it to third parties, provided that such
information and other information is in written or other tangible form and
clearly marked or identified as being confidential at the time of disclosure or,
if disclosed orally, such information shall be identified as confidential at the
time of disclosure with subsequent confirmation to Bentley in writing within
thirty days after disclosure identifying the date and type of information
disclosed.
ss. 17. EXCEPTIONS TO CONFIDENTIALITY. The obligations set forth in Section
(SS.) 16 shall not apply to any information that: (a) is publicly available at
the time of disclosure; (b) is lawfully obtained by Bentley from a third party
who has not illegally derived such information, directly or indirectly, from
Xxxxx, (c) is lawfully in the possession of Bentley, in any recorded form,
before the time of disclosure and such recorded form is produced by Bentley; (d)
is disclosed by Bentley with the permission of Xxxxx on a non-confidential
basis; (e) is developed by or on behalf of Bentley by individuals who have not
developed or received information under this Agreement.
ss. 18. TERM OF AGREEMENT. This Agreement, effective as ofNovember 6, 2003,
shall remain in effect for three years from the Closing Date unless terminated
earlier in accordance with Section (SS.) 20 of this Agreement.
ss. 19. RENEWAL OF AGREEMENT. Upon the expiration of the initial term of this
Agreement, or any renewal term, this Agreement and the License Rights and Record
Keeping Duties granted hereunder may be renewed for successive three year terms
upon written consent of both Parties hereto. No additional License Fee shall be
due upon renewal.
ss. 20. TERMINATION.
(a) AT WILL. THIS AGREEMENT IS TERMINABLE AT WILL BY BENTLEY WITH
THIRTY (30) DAYS WRITTEN NOTICE TO XXXXX, as long as the
licensing fee and royalty minimum fees have been paid.
(b) DEFAULT. In the event that either of the Parties defaults in
its performance of its obligations hereunder, this Agreement
may be terminated by the non-defaulting Party by serving
notice of such termination as follows:
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(i) if a Party (the "DEFAULTING PARTY") shall default in the
performance of any of its obligations hereunder, and such
default shall continue for thirty (30) days after written
notice specifying such default has been served upon the
Defaulting Party; or
(ii) if a Party shall discontinue business or become bankrupt or
insolvent, or apply for or consent to the appointment of a
trustee, receiver, or liquidator of its assets, or seek relief
under any law for the aid of debtors, or take or permit any
action under federal or state laws similar to the foregoing.
Such right to termination shall not be exclusive, and exercise by the
non-defaulting Party shall not preclude the exercise by such Party of any other
right or remedy that it may have at law or in equity against the Defaulting
Party on account of any default by the Defaulting Party.
ss. 21. SURVIVAL. Except as expressly otherwise provided in this Agreement, its
termination shall not relieve any party of any obligation or liability accrued
hereunder prior to such termination, nor affect or impair the rights of any
party arising under this Agreement prior to such termination.
ss. 22. LICENSE ASSIGNABLE. The License Rights and Record Keeping Duties granted
in this Agreement by Xxxxx shall be assignable by Bentley so long as Bentley is
not in default at the time it seeks to assign the License Rights and Record
Keeping Duties and provided the assignee is acceptable to Xxxxx. Xxxxx'x
acceptance of an assignee shall not be unreasonably withheld.
ss. 23. NOTICES. All necessary notices or correspondence required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
properly given when hand delivered or when mailed postage prepaid by first class
certified mail, return receipt requested:
If to Xxxxx: XX. XXXXXX XXXXX
0 XXXXXXXX XXXXXX
XXXXXX, XXX XXXXXXXXX 00000
(000) 000-0000 FAX
xxxxxx@xxxxxxxxxxx.xxx
with a copy to: XXXXXXX XXXXXX RICHMOND, ESQ.
0 XXXXXXXXX XXXXX
XXXXXXXX, XXX XXXXXXXXX 00000
(000) 000-0000 FAX
xxx@xxxxxxxxxx.xxx
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If to Bentley: XX. XXXXXX XXX, CHAIRMAN & CEO
BENTLEY COMMUNICATIONS CORP.
00000 XXXXXXX XXXXXXXXX, XXXXX 000
XXX XXXXXXX, XXXXXXXXXX 00000-00000
(000) 000-0000 FAX
xxx@xxxxxxxxxxxxxxxx.xxx
with a copy to: XXXXX XXXXXX, ESQ.
WEED & CO. LLP
0000 XXXXXXXXX XXXXX, XXXXX 0000
XXXXXXX XXXXX, XXXXXXXXXX 00000
(000) 000-0000 FAX
xxxxx@xxxxxx.xxx
ss. 24. PUBLIC ANNOUNCEMENTS. Except as may be required by law, neither Party
shall make any public announcement or filing with respect to the transactions
provided for herein without the prior consent of the other Party.
ss. 25. ATTORNEY'S FEES. If any Party shall bring an action to enforce any
provision of this Agreement, the prevailing Party shall be entitled to
reimbursement for all reasonable legal fees and costs, incurred by such Party in
enforcing the terms of this Agreement.
ss. 26. BENEFIT. This Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto and their respective successors and assigns.
ss. 27. FORCE MAJEURE. Whenever a period of time is herein prescribed for the
taking of any action by either Party hereto, such Party shall not be liable or
responsible for any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws and regulations or any other cause
whatsoever beyond the control of such Party.
ss. 28. RIGHT TO CONTINUE WORK WITH THIRD PARTIES. Subject to the terms of this
Agreement, each Party hereto shall be free to engage in other work, alone or
with others, and to furnish information to and receive information from third
parties, provided the provision of information is not in contravention of the
terms of this Agreement.
ss. 29. AMENDMENT AND WAIVER. This Agreement may be amended, or any provision of
this Agreement may be waived, provided that any amendment or waiver will be
binding on Xxxxx only if such amendment or waiver is set forth in a writing
executed by Xxxxx, and provided that any amendment or waiver will be binding
upon Bentley only if such amendment or waiver is set forth in a writing executed
by Bentley. The waiver of any Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach. Failure at any time to require performance of any of the
provisions herein shall not waive or diminish a Party's right thereafter to
demand compliance therewith or with any other provision.
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ss. 30. LIMITATION OF LIABILITY. Neither Party hereto will be liable to the
other for any indirect, special or consequential damages whatsoever, whether
grounded in tort (including negligence), strict liability or contract, and
neither Party's liability under any circumstances shall exceed the contract
price hereunder.
ss. 31. INDEPENDENT CONTRACTOR. In the performance of this Agreement, the status
of the Parties, including their employees and agents, shall be that of
independent contractors and not as employees or agents, and as such, neither
Party shall have the right to make commitments for or on behalf of the other
Party.
ss. 32. GENERAL INDEMNIFICATION. Each Party hereto shall be responsible for: (a)
the safety of its own employees and agents while engaged in work under the
Agreement, and (b) any liability for damages or personal injuries, including
death, resulting from work under the Agreement, without any warranty, liability,
or indemnification on the part of the other Party.
ss. 33. CONSTRUCTION & APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California as
if the Agreement were fully executed and performed under the laws of the State
of California so that the principles of conflicts of laws would not apply.
ss. 34. SETTLEMENT OF DISPUTES. In the event of the occurrence of any dispute or
disagreement, the Parties hereto shall first exert their best efforts in good
faith to resolve the matter amicably between themselves as provided for in this
Agreement. Within thirty (30) days after written demand by either Party, both
Parties shall designate two representatives from among those personnel
acquainted with the work involved who shall discuss and attempt to resolve the
dispute or disagreement at the offices of the Party on which demand was served,
or such other place agreeable to the Parties. If a resolution has not been
achieved within ninety (90) days from the date on which the written demand for
such working-level discussions was originally made, then either Party may demand
in writing that an officer (vice president, president, or director) from each
party discuss and attempt to resolve the dispute or disagreement at a place
mutually agreed upon by the Parties. If a resolution has not been achieved
within sixty (60) days after the written demand for discussions between officers
of the Parties, then either Party shall be free to resort to a court of justice
having jurisdiction over the Parties and the subject matter of the dispute,
provided, however, that both Parties hereby waive irrevocably any right to have
such dispute or disagreement tried before a jury.
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ss. 35. SEVERABILITY. Should any provision of this Agreement be determined to be
invalid, illegal or unenforceable by a court of competent jurisdiction, then
such provision shall be amended by the Parties hereto so as to make it valid,
legal and enforceable but keeping it as close to its original meaning as
possible. The invalidity, illegality or unenforceability of any provision shall
not affect in any manner the other provisions herein contained, which remain in
full force and effect.
ss. 36. GRAMMATICAL USAGE. Throughout this Agreement, reference to the neuter
gender shall be deemed to include the masculine and feminine, the singular the
plural and the plural the singular, as indicated by the context in which used.
ss. 37. HEADINGS; CONTEXT. The headings of the sections (ss. ss.) and paragraphs
(P. P.) contained in this Agreement are for convenience of reference only and do
not form a part hereof and in no way modify, interpret or construe the meaning
of this Agreement.
ss. 38. COUNTERPARTS. This Agreement may be executed in numerous counterparts,
all of which shall be considered one and the same agreement. For purposes of
this Agreement only, facsimile signatures shall be considered original
signatures.
ss. 39. AUTHORITY TO BIND. Xxxxx hereby warrants and represents that it has the
full and unconditional right and authority to enter into, perform and be bound
by the terms of this Agreement. Bentley hereby warrants and represents that it
has the full and unconditional right and authority to enter into, perform and be
bound by the terms of this Agreement.
ss. 40. ENTIRE AGREEMENT. This Agreement and the Amendment Agreement between the
Parties dated November 6, 2003 contain all of the terms agreed upon by the
Parties with respect to the subject matter of this Agreement and supersedes all
prior agreements, representations and warranties of the Parties as
to the subject matter of this Agreement, including the Asset Purchase Agreement
between the Parties dated August 4, 2003.
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BY CAUSING THIS AGREEMENT TO BE EXECUTED HERE BELOW, THE PARTIES ACKNOWLEDGE
THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS
TERMS AND CONDITIONS.
IN WITNESS WHEREOF, Xxxxx and Xxxxxxx have executed this Agreement in
multiple duplicate originals.
AGREED TO & ACCEPTED BY: AGREED TO & ACCEPTED BY:
XXXXX BARTER SERVICES, INC. BENTLEY COMMUNICATIONS CORP.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxx
------------------------------- --------------------------------
XXXXXX XXXXX XXXXXX XXX
AS ITS PRESIDENT AS ITS CHAIRMAN & CEO
Date: Date:
----------------------------------- ------------------------------------
WITNESS WITNESS
XXXXX XX XXX XXXXXXXXX XXXXX XX XXXXXXXXXX
XXXXXX OF HILLSBOROUGH, SS. COUNTY OF LOSANGELES, SS.
NOVEMBER __, 2003 NOVEMBER __, 2003
Xxxxxx Xxxxx, President of Xxxxx Xxxxxx Xxx, Chairman & CEO of Bentley
Barter Services, Inc., personally Communications Corp., personally
appeared before me and acknowledged appeared before me and acknowledged
his execution of the foregoing his execution of the foregoing
instrument to be the free act and instrument to be the free act and
deed of the corporation. deed of the corporation
Before me, Before me,
__________________________________ ____________________________________
Notary Public Notary Public
My commission expires: My Commission expires:
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