CONSULTING AGREEMENT
This
Consulting Agreement (the “Agreement”) is effective as of November 25, 2008,
(the “Effective Date”), by and between Playbox (US) Inc., a Nevada corporation
(the “Company”) and Jabeco Inc., of Leopold House,
Bayfront, Roseau, Commonwealth of Dominica (the
“Consultant”).
RECITALS:
WHEREAS, Consultant has
certain experience pertaining to securing music content in Asia (the
“Services”)
WHEREAS, the Company wishes to
engage the services of the Consultant as an advisor and resource to assist the
Company in the aforesaid areas, in which it acknowledges the expertise of
Consultant.
AGREEMENT:
NOW, THEREFORE, in
consideration of the foregoing recitals and the covenants and conditions herein
set forth, the parties hereto agree as follows:
1. TERM
& APPOINTMENT.
(a) The
Company hereby appoints Consultant to render the Services described in Section 2
hereof for the term of this Agreement.
(b) Unless
terminated at an earlier date in accordance with Section 6 of this Agreement or
otherwise extended by agreement of the parties, the term of the Consultant’s
engagement hereunder shall be for a period of sixty (60) months (the “Term”),
commencing on the Effective Date. The period of engagement may be extended by
written agreement or e-mail between the parties, provided that certain
provisions relating to compensation may change upon commencement of any
extension hereto.
2. SERVICES.
(a) During
the term of this Agreement, Consultant shall render to the Company, by and
through Consultant’s officers, employees, agents, representatives and
affiliates, consultancy services in the area of securing music content from Asia
in the form of Asian DJ’s, Asian Independent labels, music video content, music
distribution technology, music distribution through Asian channels and portals
both online and on mobile networks and other advisory services directly related
to these Services as may be determined from time to time by the Company’s
officers, board of directors and/or the Consultant.
(b) The
Consultant agrees to serve the Company faithfully and to the best of
Consultant’s ability and to devote a reasonable amount of time, attention and
efforts to the business and affairs of the Company during Consultant’s
engagement by the Company. The Consultant hereby confirms that Consultant is
under no contractual commitments inconsistent with Consultant’s obligations set
forth in this Agreement.
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3. FEES.
The
Consultant will receive, as payment in kind from the Company, in respect of his
services under this Agreement, 9,000,000 shares of the common stock of the
Company, par value $.001 (the “Common Stock”). The Consultant understands that
the Common Stock may not be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise), and the Company shall have
no obligation to transfer such shares, unless registered under the Securities
Act of 1933, as amended (the “Act”) or, in the opinion of counsel to the
Company, such transaction is in compliance with or exempt from the registration
and prospectus requirements of the Act. The Consultant shall pay all costs
incurred by the Company in such a transaction, including but not limited to
legal fees and costs. The Common Stock shall not be subject to levy and
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of the Common Stock, or any right or
privilege conferred hereby, contrary to the provisions of this Agreement, or
upon the levy or execution, attachment or similar process on the Common Stock or
the rights and privileges conferred under this Agreement, the Company shall have
the right to buy back the Common Stock, in whole or in part, in the manner
described in Section 6. Each certificate or other documentation evidencing
the ownership of any shares of Common Stock to be imprinted with a legend in
substantially the following form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE REOFFERED, SOLD, TRANSFERRED, PLEDGED, OR ASSIGNED IN THE ABSENCE OF
(A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT
AND THE STATE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION
THEREOF, OR (B) AN OPINION OF COUNSEL, REASONABLY SATISFACTORY IN FORM,
SCOPE AND SUBSTANCE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID
ACT OR THE SECURITIES ACT OR BLUE SKY ACT OF ANY STATE HAVING JURISDICTION WITH
RESPECT THERETO. ADDITIONALLY, THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
AN OPTION TO REPURCHASE IN FAVOR OF THE COMPANY AS DESCRIBED IN SECTION 6 OF THE
DIRECTOR SERVICE AGREEMENT.
Furthermore,
the Common Stock is subject to all restrictions in this Agreement. By acceptance
of the Common Stock, the Consultant agrees that the Common Stock will be held
for investment and will not be held with a view to their distribution, as that
term is used in the Act, unless in the opinion of counsel to the Company, such
distribution is in compliance with or exempt from the registration and
prospectus requirements of that Act. As a condition of this Agreement, the
Company may require the Consultant to confirm any factual matters reasonably
requested by counsel for the Company.
THE
CONSULTANT UNDERSTANDS THAT THE COMMON STOCK WILL NOT BE REGISTERED AT THE TIME
OF THIS AGREEMENT UNDER THE SECURITIES ACT. THE CONSULTANT REPRESENTS THAT
HE/SHE IS EXPERIENCED IN EVALUATING COMPANIES SUCH AS THE COMPANY, HAS SUCH
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS AS TO BE CAPABLE OF
EVALUATING THE MERITS AND RISKS OF THE INVESTMENT, AND HAS THE ABILITY TO SUFFER
THE TOTAL LOSS OF THE INVESTMENT. THE CONSULTANT FURTHER REPRESENTS THAT IT HAS
HAD THE OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM THE COMPANY
CONCERNING THE TERMS AND CONDITIONS OF THE COMMON STOCK, THE COMMON STOCK, AND
THE BUSINESS OF THE COMPANY, AND TO OBTAIN ADDITIONAL INFORMATION TO SUCH
CONSULTANT’S SATISFACTION. THE CONSULTANT FURTHER REPRESENTS THAT HE/SHE IS AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF REGULATION D UNDER THE ACT, AS
PRESENTLY IN EFFECT.
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4. OUT-OF-POCKET
EXPENSES.
In addition
to the Fees payable to Consultant pursuant to Section 3 hereof, the Company
shall pay directly, or reimburse Consultant for, its reasonable Out-of-Pocket
Expenses incurred in connection with the performance of the Services. Consultant
shall not incur any Out-of-Pocket Expense in excess of five hundred dollars
($500) without the prior written authorization of the Company. The Company shall
not be obligated to reimburse any Out-of-Pocket Expense in excess of this amount
incurred by Consultant without the Company’s prior written authorization. All
reimbursements for Out-of-Pocket Expenses shall be made promptly upon or as soon
as practicable after presentation by Consultant to the Company of the statement
in connection therewith.
5. INDEMNIFICATION.
The Company
will indemnify and hold harmless Consultant and its officers, employees, agents,
representatives, members and affiliates (each being an “Indemnified Party”) from
and against any and all losses, costs, expenses, claims, damages and liabilities
(the “Liabilities”) to which such Indemnified Party may become subject under any
applicable law, or any claim made by any third party, or otherwise, to the
extent they relate to or arise out of the performance of the Services
contemplated by this Agreement or the engagement of Consultant pursuant to, and
the performance by Consultant of the Services contemplated by, this Agreement.
The Company will reimburse any Indemnified Party for all reasonable costs and
expenses (including reasonable attorneys’ fees and expenses) as they are
incurred in connection with the investigation of, preparation for or defense of
any pending or threatened claim for which the Indemnified Party would be
entitled to indemnification under the terms of the previous sentence, or any
action or proceeding arising therefrom, whether or not such Indemnified Party is
a party hereto, provided that, subject to the following sentence, the Company
shall be entitled to assume the defense thereof at its own expense, with counsel
satisfactory to such Indemnified Party in its reasonable judgment. Any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense. Provided that the Company is not in
breach of its indemnification obligations hereunder, no Indemnified Party shall
settle or compromise any claim subject to indemnification hereunder without the
consent of the Company. The Company will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability,
cost or expense is determined by a court, in a final judgment from which no
further appeal may be taken, to have resulted from the gross negligence or
willful misconduct of the Indemnified Party. If an Indemnified Party is
reimbursed hereunder for any expenses, such reimbursement of expenses shall be
refunded to the extent it is finally judicially determined that the Liabilities
in question resulted from the gross negligence or willful misconduct of the
Indemnified Party.
6. TERMINATION.
(a) Grounds
For Termination. The Consultant’s engagement shall only terminate
prior to the expiration of the initial term set forth in Section 1(b) or any
extension thereof in the event that at any time if: (i) The Consultant dies,
(ii) The Board elects to terminate this Agreement for “Cause” (as defined below)
and notifies the Consultant in writing of such election, (iii) Either party may
terminate this Agreement at any time, for any reason or no reason, by providing
ninety (90) days written notice to the other; or (iv) The Consultant elects to
terminate this Agreement for “Good Reason” (as defined below) and notifies the
Company in writing of such election.
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If this
Agreement is terminated pursuant to clause (i) or (ii) of this Section 6(a),
such termination shall be effective immediately. If this Agreement is terminated
pursuant to clause (iii) of this Section 6(a), such termination shall be
effective 90 days after delivery of the notice of termination, or if terminated
pursuant to clause (iv) of this Section 6(a), such termination shall be
effective 30 days after delivery of the notice of termination.
(b) Cause
Defined. “Cause” means: (i) The Consultant has breached the provisions of
Section 2 or 8 of this Agreement in any material respect, and has failed to cure
such breach within 10 days after receipt of written notice from the Company,
(ii) The Consultant has engaged in willful and material misconduct, including
willful and material failure to perform the Consultant’s duties as an officer or
Consultant of the Company and has failed to cure such default within 10 days
after receipt of written notice of default from the Company, (iii) The
Consultant has committed fraud, misappropriation or embezzlement in connection
with the Company’s business, (iv) The Consultant has been convicted or has
pleaded NOLO CONTENDERE to criminal misconduct (except for parking violations,
occasional minor traffic violations and other similar minor violations), or (v)
The Consultant files for bankruptcy.
(c) Effect
of Termination. If this Agreement is terminated, the Company has the option, in
its sole and absolute discretion, to repurchase the Common Stock, in whole or in
part, for an amount of $.001 per share (the “Option to Repurchase”), immediately
upon such termination. The amount of Common Stock subject to the Option to
Repurchase shall be reduced by 150,000 shares for each full month of the service
under this Agreement, commencing on the date hereof. Notwithstanding any
termination of this Agreement, the Consultant, in consideration of Consultant’s
engagement hereunder to the date of such termination, shall remain bound by the
provisions of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of the Consultant’s
engagement.
(d) Surrender
of Records & Property. Upon termination of Consultant’s engagement with the
Company, the Consultant shall deliver promptly to the Company all records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, calculations or copies thereof that relate in any way to
the business, products, practices or techniques of the Company, and all other
property, trade secrets and confidential information of the Company, including,
but not limited to, all documents that in whole or in part contain any trade
secrets or confidential information of the Company, which in any of these cases
are in Consultant’s possession or under Consultant’s control.
(e) Payment
Obligation. If this Agreement is terminated pursuant to Section 6(a)(i) or (ii)
by the Company or under Section 6(a)(iii) or 6(a)(iv) by the Consultant,
Consultant shall not be entitled to any further Fees from the date that any such
termination becomes effective.
(f) “GOOD
REASON” DEFINED - Good Reason shall mean: (i) the assignment of the Consultant
to duties inconsistent with the Consultant’s position or responsibilities as
contemplated by Section 2(a), excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Consultant; or (ii) any material breach of this Agreement by the Company or any
successor thereto.
(g) The
provisions of Sections 5, 8 and 9 and otherwise as the context so requires shall
survive the termination of this Agreement.
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7. [Intentionally
Deleted]
8. CONFIDENTIAL
INFORMATION
Except as
permitted or directed by the Company’s Board of Directors, during the term of
Consultant’s engagement or at any time thereafter, the Consultant shall not
divulge, furnish or make accessible to anyone or use in any way (other than in
the ordinary course of the business of the Company) any confidential or secret
knowledge or information of the Company that the Consultant has acquired or
become acquainted with or will acquire or become acquainted with prior to the
termination of the period of Consultant’s engagement by the Company (including
engagement by the Company or any affiliated companies prior to the date of this
Agreement) whether developed by Consultant or by others, concerning any trade
secrets, confidential or secret designs, processes, formulae, plans, devices or
material (whether or not patented or patentable) directly or indirectly useful
in any aspect of the business of the Company, any customer or supplier lists of
the Company, any confidential or secret development or research work of the
Company, or any other confidential information or secret aspects of the business
of the Company. The Consultant acknowledges that the above-described knowledge
or information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company, and that
any disclosure or other use of such knowledge or information other than for the
sole benefit of the Company would be wrongful and would cause irreparable harm
to the Company. Both during and after the term of Consultant’s engagement, the
Consultant will refrain from any acts or omissions that would reduce the value
of such knowledge or information to the Company. The foregoing obligations of
confidentiality shall not apply to any knowledge or information that is now
published and publicly available or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than
as a direct or indirect result of the breach of this Agreement by the
Consultant.
9. MISCELLANEOUS
(a) Facsimile
Certification. A facsimile copy of this Agreement signed by any
and/or all Parties shall have the same binding and legal effect as an original
of the same.
(b) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one in the same
instrument. Regardless of whether this Agreement is executed in one
or more counterparts, each such counterpart may be executed by actual or
facsimile signature(s).
(c) Attorney’s
Fees. Should either party hereto, or any heir, personal
representative, successor or assign of either party hereto, resort to litigation
to enforce this Agreement, the party or parties prevailing in such litigation
shall be entitled, in addition to such other relief as may be granted, to
recover its or their reasonable attorneys’ fees and costs in such litigation
from the party or parties against whom enforcement was sought.
(d) Entire
Agreement. This Agreement contains the entire understanding and
agreement between the parties hereto with respect to its subject matter and
supersedes any prior or contemporaneous written or oral agreements,
representations or warranties between them respecting the subject matter
hereof.
(e) Severability. If
any provision of this Agreement, as applied to either party or to any
circumstances, shall be adjudged by a court to be void or unenforceable, the
same shall be deemed stricken from this Agreement and shall in no way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement. In the event any such provision (the “Applicable Provision”) is so
adjudged void or unenforceable, Consultant and Company shall take the following
actions in the following order: (i) seek judicial reformation of the Applicable
Provision; or (ii) negotiate in good faith with each other to replace the
Applicable Provision with a lawful provision.
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(f) Rights
Cumulative. The rights and remedies provided by this Agreement are
cumulative, and the exercise of any right or remedy by either party hereto (or
by its successors), whether pursuant to this Agreement, to any other agreement,
or to law, shall not preclude or waive its right to exercise any or all other
rights and remedies.
(g) Nonwaiver. No
failure or neglect of either party hereto in any instance to exercise any right,
power or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right, power or privilege in any other
instance. All waivers by either party hereto must be contained in a
written instrument signed by the party to be charged and, in the case of the
Company, by an executive officer of the Company or other person duly authorized
by the Company.
(h) No
Implied Contract. The parties intend to be bound only upon execution
of this Agreement and no negotiation, exchange or draft or partial performance
shall be deemed to imply an agreement. Neither the continuation of work by
Consultant or any other conduct shall be deemed to imply a continuing agreement
upon the expiration of this Agreement.
(i) Execution
of the Agreement. Company and the party executing this Agreement on
behalf of the Company has the requisite corporate power and authority to enter
into and carry out the terms and conditions of this Agreement, as well as all
transactions contemplated hereunder. All corporate proceedings have been taken
and all corporate authorizations and approvals have been secured which are
necessary to authorize the execution, delivery and performance by Company of
this Agreement. This Agreement has been duly and validly executed and delivered
by Company and constitutes the valid and binding obligations of Company,
enforceable in accordance with the respective terms. Upon delivery of
this Agreement to Consultant, this Agreement, and the other agreements referred
to herein, will constitute the valid and binding obligations of Company, and
will be enforceable in accordance with their respective terms.
(j) Non-Disclosure. Except
as may be required by law, neither Consultant nor the Company shall disclose the
financial terms of this Agreement to persons not involved in the operation of
the Company, and the Parties shall disclose the financial terms of the Agreement
to those involved in the operation of the Company only as needed to implement
the terms of the Agreement or carry out the operations of the Company. The above
notwithstanding, the financial terms of the Agreement may be disclosed to: (i)
either Party’s accountants, financial or tax advisors, and any potential
investors in the Company, provided such persons agree not to disclose such terms
of the Agreement further; and (ii) members of Consultant’s immediate family,
provided such family members agree not to reveal the terms of the Agreement
further.
(k) Agreement
to Perform Necessary Acts. Consultant and the Company agree to
perform any further acts and execute and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
(l) Independent
Contractor. The relationship between Consultant and the Company is
that of independent contractor under a “work for hire”
arrangement. All work product developed by Consultant shall be deemed
owned and assigned to Company. This Agreement is not authority for
Consultant to act for the Company as its agent or make commitments for the
Company. Consultant will not be eligible for any employee benefits,
nor will the company make deductions from fees to the consultant for taxes,
insurance, bonds or the like. Consultant shall not hold himself out
as an officer, director or employee of the Company (unless Consultant is
hereafter appointed to such position). Consultant retains the
discretion in performing the tasks assigned, within the scope of work
specified.
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(m) Taxes. Consultant
agrees to pay all taxes that may be imposed upon Consultant with respect to the
Fees paid to Consultant hereunder.
(n) Governing
Law. This Agreement and the rights and remedies of each party arising
out of or relating to this Agreement (including, without limitation, equitable
remedies) shall (with the exception of any applicable federal laws) be solely
governed by, interpreted under, and construed and enforced in accordance with
the laws (without regard to the conflicts of law principles) of the State of
Nevada, as if this Agreement were made, and as if its obligations are to be
performed, wholly within the State of Nevada.
(o) Successors
& Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (q), successors and
assigns.
(p) Assignability. Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable (including by operation of law) by
either party without the prior written consent of the other party to this
Agreement, except that the Company may, without the consent of the Consultant,
assign its rights and obligations under this Agreement to any corporation, firm
or other business entity with or into which the Company may merge or
consolidate, or to which the Company may sell or transfer all or substantially
all of its assets, or of which 50% or more of the equity investment and of the
voting control is owned, directly or indirectly, by, or is under common
ownership with, the Company. Provided such assignee explicitly assumes such
responsibilities, after any such assignment by the Company, the Company shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be the Company for the purposes of all provisions of
this Agreement including this Section 10. Compensation under this
Agreement is assignable at the discretion of the Consultant.
(q) Modification,
Amendment, Waiver Or Termination. No provision of this Agreement may
be modified, amended, waived or terminated except by an instrument in writing
signed by the parties to this Agreement. No course of dealing between the
parties will modify, amend, waive or terminate any provision of this Agreement
or any rights or obligations of any party under or by reason of this
Agreement.
(r) Headings. The
headings and any table of contents contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(s) Third-Party
Benefit. Nothing in this Agreement, express or implied, is intended
to confer upon any other person any rights, remedies, obligations or liabilities
of any nature whatsoever.
(t) Preparation
of Agreement. The parties have participated jointly in the
negotiation and drafting of this Agreement and each provision
hereof. In the event any ambiguity, conflict, omission or other
question of intent or interpretation arises, this Agreement shall be construed
as if jointly drafted by the parties, and no presumption or burden of proof
shall be presumed, implied or otherwise construed favoring or disfavoring any
party by virtue of the authorship of this Agreement or of any provision
hereof.
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IN
WITNESS WHEREOF, this Consulting Agreement has been executed by the Parties as
of the date first above written.
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx, Director
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Jabeco
Inc.
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/s/
Xxxxx Xxxxx
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Xxxxx
Xxxxx, Director
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| Equity Management Inc. |
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