EXHIBIT 10.1 CONSULTING AGREEMENT WITH XXXXX XXXX
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective
as of September 17, 2001 (the "Effective Date") by and between Bentley
Communications Corp., a Florida corporation (the "Company") and Xxxxx Xxxx, an
individual (the "Consultant").
RECITALS
WHEREAS, the Consultant has in excess of ten (10) years of experience
in evaluating and effecting mergers and acquisitions of publicly held companies
and development stage ventures.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT.
The Company hereby retains Consultant, effective the date hereof and
continuing until termination, as provided herein, to assist the Company in its
marketing and growth strategies (the "Services") including, but not limited to,
effecting a potential merger or the acquisition of a privately held company (the
"Merger"). The Services are to be provided on a "best efforts" basis, and the
Services shall expressly exclude all legal advice, accounting services or other
services which require licenses or certification that Consultant may not have.
The Company expressly retains the right to approve, in its sole
discretion, the Merger and each business opportunity ("Business Opportunity")
introduced by Consultant and to make all final decisions with respect to
effecting a transaction on the Merger or acquisition or any Business
Opportunity.
2. CONSIDERATION.
As consideration for the Services to be provided by Consultant, the
Company shall pay Consultant Eight Thousand Dollars ($8,000) per month (the
"Monthly Fee"), payable in advance, in cash or shares of the Company's common
stock. As payment for services, the Company has proposed and the Consultant has
agreed that the Company place a block of 500,000 shares of free trading stock in
the Consultant's name with a nationally known securities broker-dealer. At least
once a month, the Consultant will send the Company a statement for fees and
costs, with written notice to the brokerage firm of the dollar amount of such
statement. Unless objection is made to the xxxx, sufficient the Company stock,
net of commission, shall then be liquidated forthwith at the prevailing market
rate to satisfy such statement. The Consultant has not been engaged to perform,
nor will the Consultant agree to perform any services in connection with a
capital raising transaction or any services that would directly or indirectly
promote or maintain a market for the Company's securities in exchange for
shares. Further, the Company has agreed to promptly register, as necessary, the
shares of common stock issued for the Monthly Fee at its own expense.
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In addition to the monthly fee and as additional consideration for the
Consultant's agreement to perform the Services, the Company hereby grants, the
Consultant an option to purchase One Million Three Hundred Seventy Two Thousand
(1,372,000) shares of the Company's common stock at an exercise price of $.20
per share (the "Stock Option"). The Stock Option must be exercised, if at all,
on or before December 31, 2004. The Stock Option granted will not be subject to
dilution (i.e. no adjustment to the number of shares or the exercise price)
based upon any reverse split of the Company's common stock. The Stock Option
shall be exercisable in whole or in part with a promissory note of less than 45
days duration or upon common "cashless exercise" terms. Further, the Company has
agreed to promptly register the shares of common stock underlying the stock
options at its own expense.
The Company shall reimburse Consultant for all mutually agreed upon
travel, lodging, meals and other out-of-pocket expenses incurred by Consultant
in performing the Services provided hereunder. All potentially reimbursable
expenses shall be agreed upon in advance. Such expenses will be invoiced to the
Company and will be paid by the Company within thirty (30) days of the Company's
receipt of such invoice. If Consultant does not receive payment in full of its
invoiced expenses within thirty (30) days after the invoice date, then the
Consultant reserves the right to require the Company to pay interest on the
unpaid invoice amount from the invoice date until paid in full at the rate of
one percent (1%) per month or the maximum rate permitted by law, whichever is
less. Consultant's entitlement to such interest shall be in addition to any
other remedies available to Consultant.
3. TERM AND TERMINATION.
Consultant shall serve as a consultant to the Company for a one (1)
year period commencing on the Effective Date (the "Term"). Either party shall
the right to terminate this Agreement upon ten days' prior written notice to the
other party after the first one hundred twenty (120) days. Consultant will
continue to be entitled to the reimbursement of its expenses prior to the
expiration of the Agreement.
4. INDEPENDENT CONTRACTOR.
Consultant's relationship with the Company will be that of an
independent contractor and not as an employee. Consultant will not be eligible
for any employee benefits, nor will the Company make deductions from
consideration paid to Consultant for taxes, all of which will be Consultant's
responsibility. Consultant will have no authority to enter into contracts that
bind the Company or create obligations on the part of the Company without the
prior written authorization of the Company.
5. COMPANY'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
As of the Effective Date, the Company hereby represents, warrants and
covenants to Consultant that the Company is a duly organized corporation validly
existing and has full power and authority to perform its obligations under this
Agreement.
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The execution and delivery of this Agreement by the Company has been
duly authorized by all requisite corporate actions and proceedings, and this
Agreement constitutes the legal, valid and binding obligation of the Company.
Neither the execution and delivery of this Agreement by the Company nor the
consummation of the transactions contemplated hereby do or would after the
giving of notice or the lapse of time or both, (i) conflict with, result in a
breach of, constitute a default under, or violate the Articles of Incorporation
or the bylaws of the Company, or (ii) conflict with, result in a breach of,
constitute a default under, or violate any federal, state or local law, statute,
rule, regulation, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court, except for
conflicts, breaches, defaults or violations which individually or in the
aggregate would not have a material adverse effect, or (iii) require any further
consent from any person or entity which has not already been received,
including, without limitation, any shareholder, Board of Director, or lender
approvals.
The Company's Board of Directors has authorized the issuance of the
shares and Stock Option as set forth in Section 2 above for consideration
consisting of this Agreement and the Services to be provided hereunder. The
Company's Board of Directors has determined that the Monthly Fee and the Stock
Option, consisting of this Agreement and the Services to be provided hereunder,
is adequate. In rendering its Services, Consultant will be using and relying on
the information supplied to it by the Company without independent verification
thereof or independent appraisal of any of the Company's business. The Company
hereby represents that all information made available to Consultant by the
Company will be complete and correct in all material respects and will not
contain any untrue statement of material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances under which such statements are made.
6. THE COMPANY'S INDEMNIFICATION OBLIGATION.
The Company agrees that it will indemnify and hold harmless Consultant
from and against any and all losses, claims, damages, liabilities and expenses,
(including all reasonable fees of counsel), caused by or arising out of (a) the
Company's breach of any covenant or representation hereunder, or (b) Consultant
acting for the Company pursuant to this Agreement, including, without
limitation, (i) actions taken or admitted to be taken by the Company or any
persons acting together or in concert with the Company (including any untrue
statements made or admitted to be made), or (ii) actions taken or admitted to be
taken by any of the indemnified persons set forth above with the consent of or
in conformity with actions taken or admitted to be taken by the Company or any
persons acting together or in concern with the Company; provided, however, that
the Company will not be liable under this Section 6 to the extent that any loss,
claim, damages, liability or expense is found to have resulted from Consultant's
gross negligence or willful misconduct.
7. MISCELLANEOUS.
7.1. AMENDMENTS AND WAIVERS. No term of this Agreement may be
amended or waived except with the written consent of the
parties.
7.2. ENTIRE AGREEMENT. This Agreement, constitutes the entire
agreement of the parties and supersedes all oral negotiations
and prior writings with respect to the subject matter hereof.
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7.3. NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be (i) delivered personally,
(ii) sent by certified or registered mail, postage prepaid,
return receipt requested, (iii) delivered by a
nationally-recognized delivery service (such as Federal
Express or UPS), or (iv) faxed, addressed to the party to be
notified at such party's address or facsimile number as set
forth below or as subsequently modified by written notice.
Notices shall be deemed communicated upon receipt if
personally delivered, delivered by a nationally recognized
delivery service or faxed (with a written confirmation of
facsimile transmission), or five (5) days after posting if
sent by certified mail.
If to the Company: Bentley Communications Corp.
Suite 1, 0000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Telephone: 000.000.0000
Facsimile: 310.445.2529
Attn: Xxxxxx X. Xxx
If to Consultant: Xxxxx Xxxx
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 970.532.5007
7.4. CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of
the State of Colorado, without giving effect to the principles
of conflict of laws.
7.5. ATTORNEYS' FEES. If any action at law or in equity if
commenced by any party to enforce or interpret the terms of
this Agreement, the party finally prevailing in such
proceeding or action shall be entitled to recover from the
unsuccessful party reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to
which it may be entitled.
7.6. SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith. In the
event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such
provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
7.7. COUNTERPARTS. This Agreement may be excluded in counterparts,
each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date
COMPANY
BENTLEY COMMUNICATIONS CORP.
/s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: President
CONSULTANT
/s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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