Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Pre-Effective Amendment to Registration of 142 740K
Securities by a Small-Business Issuer
2: EX-1 Underwriting Agreement 54 225K
3: EX-4.2 Instrument Defining the Rights of Security Holders 31 107K
4: EX-4.3 Instrument Defining the Rights of Security Holders 38 141K
5: EX-4.4 Instrument Defining the Rights of Security Holders 9 46K
6: EX-5 Opinion re: Legality 3 14K
7: EX-9.1 Voting Trust Agreement 6 27K
8: EX-9.2 Voting Trust Agreement 1 10K
9: EX-9.3 Voting Trust Agreement 1 10K
10: EX-9.4 Voting Trust Agreement 1 10K
11: EX-10.1 Material Contract 17 57K
12: EX-10.2 Material Contract 16 57K
13: EX-10.3 Material Contract 13 47K
14: EX-10.35 Material Contract 12 55K
15: EX-10.36 Material Contract 12 55K
16: EX-10.37 Material Contract 12 55K
17: EX-10.38 Material Contract 11 45K
18: EX-10.39 Material Contract 10 40K
19: EX-10.40 Material Contract 1 10K
20: EX-10.41 Material Contract 23 81K
21: EX-10.42 Material Contract 6 22K
22: EX-10.43 Material Contract 5 23K
23: EX-10.44 Material Contract 6 25K
24: EX-10.45 Material Contract 7 30K
25: EX-10.46 Material Contract 2 11K
26: EX-23.1 Consent of Experts or Counsel 1 8K
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of April 30, 1996 (the "Effective Date"), by and between ASSI, Inc., a Nevada
corporation ("ASSI"), and Sound Source Interactive, Inc., a Delaware corporation
(the "Company").
R E C I T A L S
A. The Company is a relatively new enterprise which is engaged
primarily in developing, publishing and marketing educational interactive
computer software for children.
B. ASSI has significant expertise in start-up companies such as the
Company.
C. Since December 1995, ASSI has provided consulting services to the
Company. The Company wishes to engage ASSI to continue to provide such services
and ASSI wishes to accept such engagement, all on the terms and conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. CONSULTING AGREEMENT.
1.1 TERM. From the Effective Date until November 30, 1996 (the
"Term"), ASSI shall provide such consulting services to the Company as the
Company may from time to time reasonably request.
1.2 SCOPE OF CONSULTING SERVICES. During the Term ASSI shall,
from time to time as reasonably requested by the Company, make its personnel
with the appropriate expertise available by telephone or in person to render
such advice, consultation and services as may be requested by the Company. The
Company and ASSI acknowledge that the services to be provided by ASSI pursuant
to this Agreement are of an advisory nature only and shall not involve or
require ASSI to be responsible in any way for the management of the Company or
its day-to-day operations. The Company agrees that any advice or information
provided by ASSI under this Agreement will be independently evaluated by the
Company's officers, directors and other outside consultants and that ASSI shall
in no way be liable to the Company or third parties for any actions taken by the
Company based in whole or in part on such advice or information, other than for
advice provided in writing with a willful intent to cause damage to the Company.
ASSI makes no representations whatsoever to the Company as to the services or
advice to be provided by it under this Agreement.
2. COMPENSATION. In return for ASSI's past services to the Company
and its consulting services to be rendered to the Company under this Agreement,
the Company shall pay to ASSI the following:
(a) WARRANT. Upon the execution of this Agreement, the Company
shall issue to ASSI a warrant to purchase an aggregate of two million
(2,000,000) shares of Common Stock of the Company at $4.40 per share, which
warrant shall be delivered in the form and subject to the terms and provisions
of Exhibit A attached hereto and incorporated herein by this reference (the
"Warrant"). The Warrant shall be deemed fully earned upon execution of this
Agreement. Upon issuance, ASSI shall acknowledge, accept and agree to be bound
by the terms of the Warrant by executing such Warrant where indicated.
(b) REIMBURSEMENT OF EXPENSES. In addition, within 30 days
after presentation of its demand for payment pursuant to this Section 2(b), ASSI
shall be entitled to receive reimbursement of all reasonable and necessary
expenses incurred by ASSI in performing ASSI's services hereunder, including all
reasonable travel and living expenses of ASSI's personnel while away from home
or business at the request of, or in the service of, the Company, such expenses
not to exceed $25,000 in the aggregate. Expenses covered by this Section 2(a)
shall not include fees and expenses paid pursuant to Section 6(f) of this
Agreement.
3. INDEPENDENT CONTRACTOR. ASSI shall, at all times, render
services pursuant to this Agreement as an independent contractor and not as an
employee, agent or servant of the Company, nor shall ASSI be deemed, by reason
of this Agreement or the services performed pursuant hereto, to be an employee
of the Company for purposes of withholding employee payroll taxes,
contributions, pensions or otherwise.
4. TERMINATION. The Company shall have the right to terminate this
Agreement immediately upon written notice to ASSI at any time, provided that the
obligations of the Company, Vincent Bitetti and Eric Winston under Sections 2
and 5 hereof shall survive for the full term provided in such Sections or in the
documents to which such Sections refer.
5. OTHER AGREEMENTS.
5.1 BOARD REPRESENTATION AND OBSERVER RIGHTS. The Company
agrees to appoint one (1) individual designated by ASSI to the Board of
Directors of the Company, with this obligation to be effective upon completion
of the Company's pending initial public offering. The Company agrees to
indemnify and hold harmless such director to the maximum extent permitted by law
in connection with such individual's services as director. Such director will
be entitled to directors' fees equal to $15,000 per year and shall be granted
annual options under the Company's 1995 Stock Option Plan to purchase no less
than 10,000 shares of Common Stock of the Company, with the first grant
effective as of the date of appointment of such director and at an exercise
price of $4.00 per share. In addition, during the term of this Agreement, one
individual designated by ASSI shall have the right to receive all notices of and
attend as an observer each meeting of the Board of Directors.
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5.2 VOTING AGREEMENT. The Company agrees that as a further
inducement to ASSI to enter into this Agreement, the Company, Vincent Bitetti
and Eric Winston shall enter into a Voting Agreement with ASSI in the form of
Exhibit B attached hereto.
5.3 INDEMNIFICATION OF ASSI. The Company agrees to indemnify
and hold harmless ASSI, and its successors and assigns, to the maximum extent
permitted by law, with respect to any and all claims, losses, damages,
liabilities and expenses, which ASSI is or becomes legally obligated to pay as a
result of any threatened, pending or completed action, claim, suit,
investigation or proceeding ("Proceeding") by reason of the fact that ASSI is or
was a consultant to the Company or otherwise resulting from or in connection
with this Agreement, except to the extent such claims, etc., are based on advice
provided in writing by ASSI with a willful intent to cause damage to the
Company. Costs and expenses (including attorneys' fees) incurred by ASSI in
defending or investigating any Proceeding shall be paid by the Company from time
to time within 30 days of demand by ASSI in advance of the final disposition of
such matter, if ASSI shall undertake in writing to repay any such advances in
the event that it is ultimately determined that ASSI is not entitled to
indemnification under the terms of this Agreement.
5.4 OTHER WARRANTS. ASSI owns other warrants to purchase shares
of Common Stock of the Company ("Other Warrants"). In the event of a public
offering by the Company involving the sale of warrants by the Company ("Public
Warrants"), these Other Warrants are convertible into an equivalent number of
Public Warrants with an exercise price and other terms identical to those of the
Public Warrants. As a further inducement to ASSI to enter into this Agreement,
the Company hereby amends the Other Warrants to provide that upon such a
conversion of the Other Warrants into Public Warrants, for so long as ASSI or
any Affiliate (as defined below) of ASSI is the record and beneficial owner of
any such Public Warrant (i) any provisions of the Public Warrant granting the
Company the right to call the Public Warrant for redemption shall not apply to
that Public Warrant, (ii) the registration rights set forth in the Other
Warrants shall remain in effect with respect to that Public Warrant, and (iii)
the Public Warrant shall be exercisable at any time on or after September 1,
1996. For purposes of this Section 5.4, the term "Affiliate" means ASSI or any
person or entity controlling, controlled by or under common control with ASSI.
For purposes hereof, a person shall be deemed to have "control" of an entity if
such person is the owner of a majority voting interest in such entity.
6. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, administrators,
executors, successors and assigns.
(b) DISPUTE RESOLUTION. Any controversy, dispute, or claim
arising out of or relating to the interpretation, performance or breach of this
agreement shall be finally determined, at the request of any party, by binding
arbitration conducted in Los Angeles County, California in accordance with the
then existing rules for commercial arbitration of the American
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Arbitration Association. The parties agree that reasonable discovery shall be
allowed in arbitration. Judgment upon any award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The arbitrator shall award
to the prevailing party, in addition to the costs of the proceeding, that
party's reasonable attorneys' fees.
(c) ATTORNEYS' FEES. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover from the non-prevailing party
reasonable expenses, including without limitation reasonable attorneys' fees and
reasonable accountants' fees.
(d) NOTICE. All notices under this Agreement shall be effective
upon: (i) personal delivery to the recipient; or (ii) telecopier transmission
so long as the original notice is deposited in overnight mail (Express Mail) or
overnight courier service (e.g., Airborne, Federal Express, etc.); or (iii)
three (3) business days after deposit in the United States mail, registered,
certified, postage fully prepaid and addressed to the respective parties as
follows:
To ASSI: ASSI, Inc.
Two ADP Plaza
2000 Crow Canyon Place, Suite 420
San Ramon, CA 94583
Attn: President
Telecopier: (510) 277-3962
With a copy to: Hewitt & McGuire
19900 MacArthur Boulevard, Suite 1050
Irvine, CA 92715
Attn: William L. Twomey
Telecopier: (714) 798-0511
To the Company: Sound Source Interactive, Inc.
2985 E. Hillcrest Drive, Suite A
Westlake Village, CA 91362
Attn: Vincent J. Bitetti
Telecopier: (805) 495-0016
With a copy to: McDermott, Will & Emery
1850 K Street, N.W., Suite 500
Washington, DC 20006
Attn: Robert Kalik
Telecopier: (202) 778-8087
or to such other address as the parties may from time to time designate in
writing.
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(e) EXPENSES. The Company agrees to pay reasonable fees and
expenses of counsel incurred by ASSI in connection with the negotiation and
documentation of the transactions contemplated by this Agreement up to a maximum
of $12,500.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
(h) WAIVERS. No waiver of compliance with any provision of this
Agreement shall be binding unless executed in writing by the party making the
waiver. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver.
(i) AMENDMENTS. Any amendment to this Agreement shall be in
writing and signed by the parties hereto.
(j) INVALIDITY. In the event that any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement.
(k) TITLES. The titles, captions or headings of the Sections
herein are inserted for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
(l) MULTIPLE COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the day and year first above written.
"ASSI" "Company"
ASSI, INC., SOUND SOURCE INTERACTIVE, INC.,
a Nevada corporation a Delaware corporation
By: /s/ Louis Habash By: /s/ Vincent J. Bitetti
-------------------------------- --------------------------------
Name: Louis Habash Name: Vincent J. Bitetti
------------------------------ ------------------------------
Its: President Its: CEO
------------------------------- -------------------------------
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EXHIBIT A
WARRANT
[See Exhibit 4.4]
EXHIBIT B
STOCKHOLDER VOTING AGREEMENT
[See Exhibit 9.1]
Dates Referenced Herein
| Referenced-On Page |
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This ‘SB-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| | |
| | 11/30/96 | | 1 | | | | | None on these Dates |
| | 9/1/96 | | 3 |
Filed on: | | 5/9/96 |
| | 4/30/96 | | 1 |
| List all Filings |
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