CONFIDENTIAL
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of the
2nd day of September 2003, by and between ABSS, Corp. and its affiliates, an
OTC-Bulletin Board Company (the "Company") and Sonya Fukuda (the "Consultant").
WHEREAS, the Consultant is in the business of providing advisory services for
companies wishing to acquire business opportunities and
WHEREAS, the Company deems it to be in its best interest to retain the
Consultant to provide strategic planning and consulting services to and for it
and the Consultant desires to so provide such services.
NOW, WHEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows: -
1. For a period of 12 months, beginning on September 2, 2003 (the "Consulting
Period"), the Consultant shall serve as an independent consultant and advisor to
the Company on matters relating to the strategic planning of the Company and its
subsidiaries; the identification and assistance with the location of potential
acquisitions; the identification and negotiation of agreements with prospective
joint venture and strategic alliance partners; the preparation and
implementation of new business plans.
2. During the Consulting period, the Company shall be entitled to the
Consultant's services for reasonable times when and to the extent reasonably
requested by, and subject to the reasonable direction of, the Company's
Chairman, Chief Executive Officer and the Board of Directors. It is understood
that the Consultant's services are not exclusive to the Company and the
Consultant shall be free to perform services for other persons or entities.
However, the Consultant will notify the Company of its performance of consulting
services for any other person or entity that could conflict with its obligations
under this Agreement. Upon receiving such notice, the Company may terminate this
Agreement or consent to the Consultant's outside consulting activities; failure
to terminate this Agreement, within seven (7) days of receipt of written notice
of conflict, shall constitute the Client's ongoing consent to the Consultant's
outside consulting services.
3. The Consultant's services shall be rendered from his office or home, or, at
the Company's request, from the Company's executive offices. Reasonable travel
and living and other expenses necessarily incurred by the Consultant to render
services at locations other than his office or home or from the Company's
offices, shall be reimbursed by the Company promptly upon receipt of proper
invoices and statements with regard to the nature and amount of those expenses.
4. The Consultant shall have no authority to bind the Company by or obtain any
obligation, agreement, promise, or representation without first obtaining the
written approval of the Chief Executive Officer of the Company. The Consultant
shall not incur any liability on behalf of the Company or in any way represent
or bind the Company in any manner or thing whatsoever and nothing herein shall
be deemed to constitute either party the agent or representative of the other.
The Company shall indemnify and hold the Consultant harmless from and against
any liability resulting from the performance of the consulting services
hereunder.
5. In consideration of Consultant's entering into this Agreement, The Company
has agreed to issue to Consultant on or before November 10, 2003: A. A lump sum
of 500,000 restricted shares of the Company's common stock (the "Shares"); B.
Five year warrants (the "Warrants") of purchasing 1,000,000 shares of the
Company's common stock (the "Warrant Shares"), with an exercise price equal to
$0.025. The Warrants shall be exercisable and registered for sales immediately
after the date of issuance, and shall expire 5 years after the date of issuance,
unless otherwise extended by the Company. The Warrants shall include customary
cashless exercise provision and will be non-redeemable and provide for automatic
exercise upon expiration. The Warrants shall be transferable, subject only to
the securities laws, by the holders thereof. There will be no voting rights for
the warrants until exercised.
6. The Company agrees to file an S-8 Registration Statement on or before
November 10, 2003 to register the Shares and the Warrants Shares for sales, at
the Company's sole expense. If the S-8 filing is not effective, the Company
will, within 7 days, file an appropriate registration statement in lieu thereof,
at the Company's expense. The Company will provide any legal opinions required
to effectuate the registration of the Shares and the Warrant Shares. The Company
agrees to deliver the Shares free via DTC to a brokerage account established in
the name of the Consultant or deliver to the Consultant a certificate for the
proper number of Shares without a restrictive legend, as requested by the
Consultant. In addition, if the S-8 filing is deemed non-effective for any
reasons, the Company shall pay to Consultant $3,125 per month, with each such
payment due on the first day of each month throughout the term of this
Agreement. Any such payments received by the Consultant will reduce pro rata the
number of Shares due to the Consultant at such time as the S-8 filing or any
subsequent fillings shall be approved.
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7. The Consultant understands and agrees that he is an independent contractor
rather than an employee or agent of the Company. Nothing contained herein shall
be considered to create the relationship of employer-employee between the
parties to this Agreement. The Consultant shall be responsible for withholding;
paying and reporting any and all required federal, state or local income,
employment and other taxes and charges. The Consultant understands and agrees
that the Company will make no deduction from payments to the Consultant for
federal or state tax withholdings, social security, unemployment, worker's
compensation or disability insurance.
8. It is acknowledged and agreed by the Company that the Consultant is not
rendering legal advice or performing accounting services, nor acting as an
investment advisor or broker-dealer within the meaning of applicable state and
federal securities laws. It is further acknowledged and agreed by the Company
that the Consultant cannot guarantee the results or effectiveness of any of the
services rendered or to be rendered by the Consultant hereunder. Rather, the
Consultant shall use its best efforts to conduct its services and affairs in a
professional manner and in accordance with good industry.
9. The Consultant agrees that he will not, without the Company's prior consent,
disclose to anyone, any trade secrets of the Company or any confidential,
non-public information relating to the Company's business, operations or
prospects.
10. It is understood and agreed that the services of the Consultant are unique
and confidential in nature and neither the Consultant nor the Company shall
delegate or assign all or any portion of his or its required performance to any
other individual, firm or entity, without the other's written consent.
11. No waiver, amendment or modification of any provision of this Agreement
shall be effective unless in writing and signed by both parties. This Agreement
shall be binding upon and inure to the benefit of the heirs, successors,
permitted assigns and legal representatives of the parties. This Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior negotiations, discussions and other
agreements with respect to the subject matter hereof.
12. This Agreement shall be governed by and interpreted in accordance with the
laws of California. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing the facsimile signature
of a party hereto shall constitute a valid and binding execution and delivery of
this Agreement by such party. Such facsimile copies shall constitute enforceable
original documents. The undersigned signatory signing for the Company has full
authority to execute this Agreement on behalf of the Company and thus to legally
bind the Company to all of the terms hereof.
IN WITNESS WHEROF,.
CONSULTANT: COMPANY:
Sonya Fukuda ABSS, Corp.
By: /s/ Sonya Fukuda By: /s/ Alan Lew
- ---------------------------------- ----------------------------------
Name: Sonya Fukuda Title: Director
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