Exhibit 10
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NON-EXCLUSIVE CONSULTING AGREEMENT
This Non-Exclusive Consulting Agreement ("Agreement") is made on November
20, 2003 by and between SBS Interactive, Co., a Florida corporation (OTCBB
ticker "SBSS"), whose address is 200 Viceroy Rd., Unit 5, Concord, Ontario, L4K
3N8 (the "Company"), and Clearsite Ltd. f/s/o Marcus Cohn, whose address is
Tropic Isle Building, P.O. Box 438 Road Town, Tortola, British Virgin Islands
(collectively, the "Consultant"), in reference to the following:
PRELIMINARY STATEMENT
A. The Company is in the business of developing, marketing, distributing,
in wholesale and retail outlets, the Side-by-Side interactive video
system as well as various other technology products.
B. The Consultant has provided, and continues to provide, non-exclusive
consulting services in the form of valuable introductions to key
management and other personnel, introductions to strategic and joint
venture partners, introductions to service providers, and general
strategic and marketing advice and various other services, none of
them related to capital raising or stock promotion (the "Services").
NOW, THEREFORE, the Company and the Consultant agree as follows:
AGREEMENT
1. TERM. The Company has retained and will continue to retain the
Consultant, and the Consultant has accepted this appointment with the Company,
for a period that will end on February 17, 2005 (the "Term").
2. DUTIES OF CONSULTANT. The Consultant has performed and will continue to
perform Services. The Consultant will determine, in his sole discretion, the
method, details and means of performing the Services. The Consultant may, at the
Consultant's own expense, use employees or other subcontractors to assist the
Consultant with the performance of the Services.
3. COMPENSATION. The Company will pay to the Consultant, as compensation
for the past and future Services, 1,000,000 shares of the Company's common
stock, par value $.001 per share. The Company agrees to promptly file, but in no
event later than 45 days from the date hereof, a registration statement on Form
S-8, or any successor form, with the United States Securities and Exchange
Commission to register the Shares. Within 30 days from the date hereof, the
Company will issue to Consultant a stock certificate evidencing all of the
Shares.
4. NONDISCLOSURE.
4.1 ACCESS TO CONFIDENTIAL INFORMATION. The Consultant agrees that
during the Term of the business relationship between the Consultant and the
Company, the Consultant will have access to and become acquainted with
confidential proprietary information ("Confidential Information") which is owned
by the Company and is regularly used in the operation of the Company's business.
The Consultant agrees that the term "Confidential Information" as used in this
Agreement is to be broadly interpreted and includes (i) information that has, or
could have, commercial value for the business in which the Company is engaged,
or in which the Company may engage at a later time, and (ii) information that,
if disclosed without authorization, could be detrimental to the economic
interests of the Company. The Consultant agrees that the term "Confidential
Information" includes, without limitation, any patent, patent application,
copyright, trademark, trade name, service mark, service name, "know-how,"
negative "know-how," trade secrets, customer and supplier identities,
characteristics and terms of agreement, details of customer or consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisitions plans, science or
technical information, ideas, discoveries, designs, computer programs (including
source codes), financial forecasts, unpublished financial information, budgets,
processes, procedures, formulae, improvements or other proprietary or
intellectual property of the Company, whether or not in written or tangible
form, and whether or not registered, and including all memoranda, notes,
summaries, plans, reports, records, documents and other evidence thereof. The
Consultant acknowledges that all Confidential Information, whether prepared by
the Consultant or otherwise acquired by the Consultant in any other way, will
remain the exclusive property of the Company.
4.2 NO UNFAIR USE BY CONSULTANT. The Consultant promises and agrees
that the Consultant (which shall include its employees and contractors) will not
misuse, misappropriate, or disclose in any way to any person or entity any of
the Company's Confidential Information, either directly or indirectly, nor will
the Consultant use the Confidential Information in any way or at any time except
as required in the course of the Consultant's business relationship with the
Company.
5. TERMINATION.
5.1 TERMINATION ON DEFAULT. Should either party default in the
performance of this Agreement or materially breach any of its provisions, the
non-breaching party may terminate this Agreement by giving written notification
to the breaching party. Termination shall be effective immediately on receipt of
said notice. For purposes of this section, material breaches of this Agreement
shall include, but not be limited to, (i) the failure by the Company to pay the
compensation set forth in Section 3 above or Section 6 below; (ii) the
Consultant's commission of acts of material fraud or material misrepresentation;
(iii) the failure by the Consultant to conform in all material respects to all
laws and regulations governing the Consultant's duties under this Agreement.
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5.2 AUTOMATIC TERMINATION. This Agreement terminates automatically on
the occurrence of any of the following events: (i) the bankruptcy or insolvency
of the Company; or (ii) the death or disability of the Consultant.
5.3 RETURN OF COMPANY PROPERTY. Upon the termination or expiration of
this Agreement, the Consultant will immediately transfer to the Company all
files (including, but not limited to, electronic files), records, documents,
drawings, specifications, equipment and similar items in its possession relating
to the business of the Company or its Confidential Information (including the
work product of the Consultant created pursuant to this Agreement).
6. FINDER'S FEE. Separate and apart from the Services, the Consultant may
render services in relation to capital raising. In the event that the Company
enters into a binding agreement (which is in fact funded) with a financier
(including any investor group of such financier) introduced by the Consultant,
and not previously employed or utilized by the Company, then Consultant will
receive a "finder's fee," as compensation for services rendered by Consultant in
connection with such financing, of seven and one half percent (7 1/2 %) of the
gross amount contributed by such financier (including any investor group of such
financier) as a debt or equity investment in the Company. The Company is not
obligated to enter into any agreement with any financier introduced by
Consultant and if the Company fails for any reason whatsoever to do so, or if
the financier fails for any reason to contribute the sums contracted for, the
Consultant will not be entitled to any finder's fee. Consultant hereby agrees
and acknowledges that Consultant is not currently entitled to a finder's fee for
any reason whatsoever. The Company is entitled to make withholdings or
deductions required by law with respect to any compensation paid to Consultant
pursuant to this Section. The compensation paid pursuant to this Section shall
be paid only in conjunction with a capital raising transaction, and not for the
Services.
7. REPRESENTATIONS AND WARRANTIES.
(a) The Company hereby represents and warrants to Consultant as
follows:
(i) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida; and the Company has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions set forth in Section 3;
(ii) the execution and delivery by the Company of this Agreement,
and the consummation by the Company of the transactions set forth in Section 3
hereof, have been duly authorized by all necessary corporate action on the part
of the Company;
(iii) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms;
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(iv) the execution and delivery of this Agreement by the Company
and the consummation by the Company of the transactions set forth in Section 3
hereof does not conflict with, or result in a breach or violation of, any law or
regulation of any governmental authority applicable to the Company or any
material agreement to which the Company is a party; and
(v) when issued in accordance with the provisions of Section 3
hereof, the Shares issued to Consultant pursuant to Section 3 hereof shall be
duly authorized, validly issued, fully paid, nonassessable and free of any
claims or encumbrances.
(b) Consultant hereby represents and warrants to the Company as
follows:
(i) this Agreement has been duly executed and delivered by
Consultant and constitutes a valid and binding obligation of Consultant
enforceable against Consultant in accordance with its terms; and
(ii) the Consultant has the qualifications and ability to perform
the Services in a professional manner, without the advice, control, or
supervision of the Company; and
(iii) Marcus Cohn is the sole shareholder and employee of
Clearsite Ltd.
8. BUSINESS EXPENSES. The Company will reimburse the Consultant for all
reasonable business expenses incurred by the Consultant, so long as such
expenses are pre-approved in writing by the Company. The Company agrees to
reimburse Consultant for legal fees and expenses incurred by Consultant in
connection with the negotiation and drafting of this Agreement, Consultant's
negotiations with Ultimatte and for certain other expenses incurred by
Consultant on behalf of the Company prior to the date hereof, so long as
Consultant furnishes to the Company adequate records and other documentary
evidence substantiating the expense.
9. NOTICES. Unless otherwise specifically provided in this Agreement, all
notices or other communications (collectively and severally called "Notices")
required or permitted to be given under this Agreement, shall be in writing, and
shall be given by: (A) personal delivery (which form of Notice shall be deemed
to have been given upon delivery), (B) by telegraph or by private
airborne/overnight delivery service (which forms of Notice shall be deemed to
have been given upon confirmed delivery by the delivery agency), or (C) by
electronic or facsimile or telephonic transmission, provided the receiving party
has a compatible device or confirms receipt thereof (which forms of Notice shall
be deemed delivered upon confirmed transmission or confirmation of receipt).
Notices shall be addressed to the address set forth in the introductory section
of this Agreement, or to such other address as the receiving party shall have
specified most recently by like Notice, with a copy to the other party.
10. CHOICE OF LAW AND VENUE. This Agreement shall be governed according to
the laws of the state of California. Venue for any legal or equitable action
between the Company and the Consultant which relates to this Agreement shall be
in Los Angeles County.
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11. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services to be rendered by the Consultant to the Company and,
specifically, this Agreement supersedes and replaces that certain Non-Exclusive
Consulting Agreement entered into by and between the Company and Karlgar Limited
dated February 17, 2003. This Agreement contains all of the covenants and
agreements between the parties with respect to the services to be rendered by
the Consultant to the Company in any manner whatsoever. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement, or promise not contained in this Agreement shall be valid
or binding on either party.
12. COUNTERPARTS. This Agreement may be executed manually or by facsimile
signature in two or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute but one and the same
instrument.
13. ARBITRATION. The parties hereby agree that all controversies, claims
and matters of difference shall be resolved by binding arbitration before
JAMS/Endispute (the "JAMS") located in Los Angeles County, California according
to the rules and practices of the JAMS from time-to-time in force; provided
however that the parties hereto reserve their rights to seek and obtain
injunctive or other equitable relief from a court of competent jurisdiction,
without waiving the right to compel such arbitration pursuant to this section.
The arbitrator shall apply California law in rendering a decision.
14. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (A) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (B) the remaining part of this Agreement (including the application of the
offending term or provision to persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable) shall not be affected
thereby and shall continue in full force and effect to the fullest extent
provided by law.
15. NO ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES BY CONSULTANT;
COMPANY'S RIGHT TO ASSIGN. The Consultant's rights and benefits under this
Agreement are personal to it and therefore no such right or benefit shall be
subject to voluntary or involuntary alienation, assignment or transfer.
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16. ELECTRONICALLY TRANSMITTED DOCUMENTS. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is thereafter
transmitted electronically by facsimile or similar device, such facsimile
document shall for all purposes be treated as if manually signed by the party
whose facsimile signature appears.
17. INDEMNIFICATION. The Company must indemnify, defend and hold Consultant
harmless for all losses, damages, claims or proceedings involving the Consultant
and relating to the Company (including any of its officers or directors or any
of its subsidiaries), unless such losses, damages, claims or proceedings
directly relate to Consultant's own gross negligence, fraud or material breach
of this Agreement.
WHEREFORE, the parties have executed this Agreement as of the date first
written above.
"CONSULTANT"
CLEARSITE LTD.
By: /s/ Marcus Cohn
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Name: Marcus Cohn
Title: President
"COMPANY"
SBS INTERACTIVE, CO.
By: /s/ Todd Gotlieb
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Name: Todd Gotlieb
Title:
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