CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this Agreement") is made as of the 24th day of
November, 2003 by and between ABSS Corp, Inc., ("the Company"), a Delaware
corporation and Xxxxxx & Xxxxxx, LLP, a New Jersey limited liability partnership
("the Consultant").
WHEREAS, the Company is trading on the OTC Bulletin Board under the symbol
"ABSP");
WHEREAS, the Consultant has provided and will continue to provide legal
services ("Consulting Services"); and
WHEREAS, the Company wishes to compensate Consultant for services already
rendered on the following terms and conditions;
NOW, THEREFORE, the Company and the Consultant agree as follows:
1. In exchange for providing the Consulting Services to Company and as
payment for services already provided the Consultant shall receive two hundred
and fifty thousand (250,000) S-8 shares of Company's common stock, par value
$.001 (the "Shares"). Consultant shall not directly or indirectly promote or
maintain a market for the Shares. Moreover, Consultant agrees that the Shares
are not and will not be provided in connection with a capital raising
transaction for the Company, and that Consultant will provide no services
relating to any capital raising or the promotion or maintenance of a market for
the shares of the Company.
2. The Shares will be issued to the principals of Consultant, Xxxxxxx X.
Xxxxxx and Xxxxx X. Xxxxxx (the "Principals"), in the ratio of 70 percent and 30
percent, respectively. Upon sale by the Principals of the Shares on the open
market, the Principals shall provide the Company with copies of brokerage
statements reflecting the sale of the Shares. The net sale proceeds after
brokerage commissions shall be applied as a credit towards the current
outstanding invoice as a retainer for services rendered.
3. The Consultant shall use the Consultant's best efforts to assist the
Company by providing the Consulting Services.
4. The Consultant and the Principals each shall be an independent
contractor and shall have no right or authority to assume or create any
obligations or responsibility, express or implied, on behalf of or in the name
of the Company, unless specifically authorized in writing by the Company. No
provision of this Agreement shall be construed to preclude Consultant or the
Principals from pursuing other projects. Likewise, the Company shall be free to
engage the services of other consultants who may compete directly with
Consultant in providing similar Consulting Services. Consultant and the
Principals each understands and agrees that Consultant and the Principals each
is not an employee of the Company or any parent, subsidiary or affiliates of the
Company, including ABSS Corp., a Delaware corporation, ("ABSS") and Consultant
and the Principals each covenants and agrees that Consultant and the Principals
each will make no claim, contention or argument that Consultant and the
Principals each is or ever was an employee of the Company or any of its parent,
subsidiaries or affiliates.
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5. The Consultant and the Principals shall not be liable for any mistakes
of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the
negligence or intentional misconduct of the Consultant and the Principals or any
person or entity acting for or on behalf of the Consultant and the Principals.
6. The Company and its present and future subsidiaries jointly and
severally agree to indemnify and hold harmless the Consultant and the Principals
each against any loss, claim, damage or liability whatsoever, (including
reasonable attorneys' fees and expenses), to which Consultant and the Principals
each may become subject as a result of performing any act (or omitting to
perform any act) contemplated to be performed by the Consultant and the
Principals each pursuant to this Agreement unless such loss, claim, damage or
liability arose out of Consultant's and the Principals' negligence, or
intentional misconduct. The Company and its subsidiaries agree to reimburse
Consultant and the Principals each for the reasonable costs of defense of any
action or investigation (including reasonable attorney's fees and expenses);
provided, however, that Consultant and the Principals each agrees to repay the
Company or its subsidiaries if it is ultimately determined that Consultant or
the Principals is not entitled to such indemnity. In case any action, suit or
proceeding shall be brought or threatened, in writing, against Consultant and
the Principals, it shall notify the Company within three (3) days after the
Consultant and the Principals receive notice of such action, suit or threat. The
Company shall have the right to appoint the Company's counsel to defend such
action, suit or proceeding, provided that Consultant and the Principals each
consents to such representation by such counsel, which consent shall not be
unreasonably withheld. In the event any counsel appointed by the Company shall
not be acceptable to Consultant and the Principals, then the Company shall have
the right to appoint alternative counsel for Consultant and the Principals
reasonably acceptable to Consultant and the Principals, until such time as
acceptable counsel can be appointed. In any event, the Company shall, at its
sole cost and expense, be entitled to appoint counsel to appear and participate
as co-counsel in the defense thereof. Consultant and the Principals, or their
co-counsel, shall promptly supply the Company's counsel with copies of all
documents, pleadings and notices which are filed, served or submitted in any of
the aforementioned. Consultant and the Principals each shall not enter into any
settlement without the prior written consent of the Company, which consent shall
not be unreasonably withheld.
7. Consultant and the Principals each covenants and agrees that the Shares
shall be and represent full payment and discharge of any claim by Consultant and
the Principals for any compensation, commission or other earnings of any kind
against the Company and any current or future parent, subsidiary or affiliates
of the Company, other than the Balance. Consultant and the Principals each
further covenants and agrees that the value of the Shares represented by the
Balance, as determined herein, shall be reported to Consultant on IRS Form 1099
for the year 2002.
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8. This Agreement shall be binding upon the Company and the Consultant and
their successors and assigns.
9. If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable for any reason whatsoever, (i) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (ii) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested by the provision held, invalid illegal
or unenforceable.
10. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of any
other provisions hereof (whether or not similar) shall be binding unless
executed in writing by both parties hereto nor shall such waiver constitute a
continuing waiver.
11. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which shall
constitute one and the same Agreement.
12. The Parties agree that should any dispute arise in the administration
of this Agreement, that this Agreement shall be governed and construed by the
laws of the State of New Jersey, without regard to conflicts of laws of any
other jurisdiction. The Parties further agree that any action arising out of
this agreement shall be brought exclusively in an appropriate court of New
Jersey having jurisdiction.
13. This Agreement contains the entire agreement between the parties with
respect to the consulting services to be provided to the Company by the
Consultant and supersedes any and all prior understandings, agreements or
correspondence between the parties.
IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be signed by duly authorized representatives as of the day and year
first above written.
ABSS CORP. CONSULTANT:
XXXXXX & JACLIN, LLP
BY: /s/ Xxxx Xxx BY: /s/ Xxxxxxx X. Xxxxxx
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Xxxx Xxx, President Xxxxxxx X. Xxxxxx, Individually and as Agent
BY: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Individually and as Agent
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