EXHIBIT 10.3 Severance Agreement between Bentley Communications Corp. and
Xxxxxx X. Xxx
XXXXXXXXX AGREEMENT
This Severance Agreement ("Agreement") is entered to be effective as of October
10, 2002 by and between Bentley Communications Corp., a Florida corporation
("Bentley"), and Xxxxxx X. Xxx, a person residing in the State of California
("Xxx").
[Recitals]
WHEREAS, Xxx has personally guaranteed certain debts for legal fees for Bentley;
WHEREAS, Xxx, subject to the terms and conditions of this Agreement, has agreed
to terminate all employment, consulting and loan agreements with Bentley; and
WHEREAS, Xxx, subject to the terms and conditions of this Agreement, is
resigning the offices of Chief Executive Officer, Chief Financial Officer, and
Secretary of Bentley to focus more time on other interests.
WHEREAS, Xxx, subject to the terms and conditions of this Agreement, has agreed
to serve as a Director of Bentley until any and all Bentley obligations that
were personally guaranteed by Xxx have been fully satisfied.
[The Agreement]
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is acknowledged, Bentley and Xxx agree as follows.
1. Bentley shall indemnify Xxx to the fullest extent permitted by law if Xxx is
or becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, any threatened, pending or
completed action, suit, proceeding or alternative dispute resolution mechanism,
whether civil, criminal, administrative, investigative or other (hereinafter a
"CLAIM") by reason of (or arising in part out of) any event or occurrence
related to the fact that Xxx personally guaranteed any of Bentley's obligations,
is or was a director, officer, employee, agent or fiduciary of Bentley, against
any and all expenses (including attorneys' fees and all other costs, expenses
and obligations incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend, be
a witness in or participate in, any such action, suit, proceeding, alternative
dispute resolution mechanism, hearing, inquiry or investigation), judgments,
fines, penalties and amounts paid in settlement (if such settlement is approved
in advance by Bentley, which approval shall not be unreasonably withheld) of
such Claim and any federal, state, local or foreign taxes imposed on Xxx as a
result of the actual or deemed receipt of any payments under this Agreement
(collectively, hereinafter "EXPENSES"), including all interest, assessments and
other charges paid or payable in connection with or in respect of such Expenses.
Such payment of Expenses shall be made by Bentley as soon as practicable but in
any event no later than twenty days after written demand by Xxx is presented to
Bentley.
2. Bentley shall immediately issue Xxx Five Million (5,000,000) restricted
shares of its $.0001 par value common stock in consideration for Xxx'x
termination of all employment and consulting agreements with Bentley.
Furthermore, Bentley represents and warrants that the newly issued shares shall
be fully paid non-assessable shares of common stock of Bentley. Moreover,
Bentley approves, ratifies and confirms the status of Xxx'x 42,900,000 shares of
Bentley common stock (the 5,000,000 new shares to be issued per this paragraph,
plus 37,900,000 currently held by Xxx) as fully paid non-assessable shares of
common stock. Bentley shall fully cooperate with Xxx in any subsequent sale or
transfer of Xxx'x shares, including but not limited to payment by Bentley of any
transfer agent fees and legal opinions.
3. Subject to the terms and conditions of this Agreement, Xxx resigns, effective
immediately, as Chief Executive Officer, Chief Financial Officer and Secretary
of Bentley. Xxx'x resignation is not because of any disagreement with Bentley
concering Bentley's operations, policies or practices, but so that Xxx can focus
on other activities.
4. This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
5. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation or
otherwise to all or substantially all of the business and/or assets of Bentley.
Bentley shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of Bentley, by written agreement
in form and substance satisfactory to Xxx, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that Bentley
would be required to perform if no such succession had taken place. This
Agreement shall continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether Xxx continues to serve as a director,
officer, employee, agent or fiduciary of Bentley or of any other enterprise at
Bentley's request.
6. In the event that any action is instituted by Xxx under this Agreement or
under any liability insurance policies maintained by Bentley to enforce or
interpret any of the terms hereof or thereof, Xxx shall be entitled to be paid
all Expenses incurred by Xxx with respect to such action, regardless of whether
Xxx is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of such
action, a court of competent jurisdiction over such action determines that each
of the material assertions made by Xxx as a basis for such action was not made
in good faith or was frivolous. In the event of an action instituted by or in
the name of Bentley under this Agreement to enforce or interpret any of the
terms of this Agreement, Xxx shall be entitled to be paid all Expenses incurred
by Xxx in defense of such action (including costs and expenses incurred with
respect to Xxx'x counterclaims and cross-claims made in such action), and shall
be entitled to the advancement of Expenses with respect to such action, unless,
as a part of such action, a court having jurisdiction over such action
determines that each of Xxx'x material defenses to such action was made in bad
faith or was frivolous.
7. All notices and other communications required or permitted hereunder shall be
in writing, shall be effective when given, and shall in any event be deemed to
be given (a) five (5) days after deposit with the U.S. Postal Service or other
applicable postal service, if delivered by first class mail, postage prepaid,
(b) upon delivery, if delivered by hand, (c) one business day after the business
day of deposit with Federal Express or similar overnight courier, freight
prepaid, or (d) one day after the business day of delivery by facsimile
transmission, if delivered by facsimile transmission, with copy by first class
mail, postage prepaid.
8. Consent to Jurisdiction. Bentley and Xxx each hereby irrevocably consent to
the jurisdiction of the courts of the State of California for all purposes in
connection with any action or proceeding which arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be
commenced, prosecuted and continued only in the State of California in and for
Los Angles County, which shall be the exclusive and only proper forum for
adjudicating such a claim.
9. The provisions of this Agreement shall be severable in the event that any of
the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
10. This Agreement shall be governed by and its provisions construed and
enforced in accordance with the laws of the State of California, as applied to
contracts between California residents, entered into and to be performed
entirely within the State of California, without regard to the conflict of laws
principles thereof.
11. No amendment, modification, termination or cancellation of this Agreement
shall be effective unless it is in writing signed by both the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver.
12. This Agreement sets forth the entire understanding between the parties
hereto and supersedes and merges all previous written and oral negotiations,
commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
13. Nothing contained in this Agreement shall be construed as giving Xxx any
right to be retained in the employ of Bentley or any of its subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Xxxxxx X. Xxx
By: ________________________
Name: Xxxxxx X. Xxx
Xxxxxxx Communications Corp.
By: ________________________
Name: Xxxxx Xxxxxxx
Title: President
