CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is made and entered into this 26 day
of August, 2002
BETWEEN:
XXXXXXX VAN MUSSCHER, a businessman residing in Gruenwald, Germany
(hereinafter referred to as the "Consultant")
OF THE FIRST PART
AND
DESTINY MEDIA TECHNOLOGIES INC., a company incorporated pursuant to the laws of
the State of Colorado.
(hereinafter referred to as the "Client")
OF THE SECOND PART
WHEREAS the Consultant and Client are desirous that the Consultant provide
certain services to the Client as set out herein.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING SERVICES
The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall:
(a) Develop a marketing plan for the expansion of the Clipstream product sales
business in Europe;
(b) Introduce the business of the Client to Consultants contacts throughout
Europe;
(c) Introduce Client to Consultant's German contacts for the purpose concluding
a joint-venture relationship, licensee or distributor for carrying on
business in Germany and assist in such negotiations;
(d) Identify companies and/or product lines that Client might acquire that
would be complimentary to the Client's business and assist in such
acquisitions.
II. TIME, MANNER AND PLACE PERFORMANCE
The Consultant provides services similar to those provided for herein to other
clients. The Client agrees that the Consultant does not and shall not be
required to devote its full time and efforts to the Client. The Consultant
shall devote such time to the Client as is reasonable and necessary to provide
the Consulting Services to the Client. Consultant shall be available for advice
and counsel to the officers and directors of the Client at such reasonable and
convenient times and places as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The Term of this Agreement shall be twelve (12) months, commencing on the date
of this Agreement set forth above ending twelve months of such date (the
"Term"), subject however, to prior termination as provided in Section XI of this
Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by the
Consultant, Client hereby agrees to compensate Consultant as follows:
a. Client shall issue 150,000 shares the common stock of the Client on or
before September 1, 2002 to the Consultant. The Shares have an
aggregate value of US $15,000 dollars based upon a price of $.10 per
share (the "Shares"). The Shares shall be issued without "restriction"
and shall be free trading.
b. On or before December 1, 2002 Client shall issue 150,000 shares the
common stock of the Client to the Consultant. The Shares have an
aggregate value of US $15,000 dollars based upon a price of $.10 per
share (the "Shares"). The Shares shall be issued without "restriction"
and shall be free trading.
c. The shares issued pursuant to this subparagraph shall be issued free
and clear of any liens and encumbrances. The Shares shall be deemed
fully earned upon receipt by Consultant provided that the Consultant
performs the services represented pursuant to this Agreement. The
shares issued pursuant to this subparagraph shall be issued free and
clear of any liens and encumbrances.
V. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not, during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such
authorization or consent to disclose may be conditioned upon the disclosure
being made pursuant to a secrecy agreement, protective order, provision of
statute, rule, regulation or procedure under which the confidentiality of the
information is maintained in the hands of the person to whom the information is
to be disclosed or in compliance with the terms of a judicial order or
administrative process. Any information which has been disclosed to the public
by the Client or upon the authorization of the client shall not be considered
Confidential Information.
VI. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity and
except as set forth in this Agreement, Consultant shall not enter into any
agreement or incur any obligation on behalf of the Client.
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VII. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS AND LIMITATION OF
LIABILITY
a. The Client agrees to indemnify and hold harmless the Consultant against any
losses, claims, damages, liabilities and/or expenses (including any legal
or other expenses reasonably incurred in investigating or defending any
action or claim in respect thereof) to which the Consultant may become
subject under the Securities Act of 1933 as amended or the Securities
Exchange Act of 1934 as amended or German legislation and regulations,
because of actions of the Client or its agent(s), Client's material
publicly available to the Consultant, or materials provided to Consultant
by Client for use by Consultant in its performance under this Agreement.
b. The Consultant agrees to indemnify and hold the Client and each officer,
director and controlling person of the Client against any loses, claims,
damages, liabilities and/or expenses (including any legal or other expenses
reasonability incurred in investigating or defending any action or claim in
respect thereof) to which the Client of such officer, director or
controlling person may become subject under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended or German
legislation and regulations, solely because of actions of the Consultant or
his agent (s).
VIII. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client for any reason upon 30 days prior written notice to
Consultant. The Client will issue a pro rata portion of the Shares that
reflects the portion of the Term completed by Consultant prior to
termination pursuant to this Section XI.
b. By Consultant upon 30 days prior written notice to the Client in the event;
(i) Client requests Consultant to perform acts or services in violation of
any law, rule, regulation, policy or order of any federal or state
regulatory agency,
(iii) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state
regulatory agency.
In the event of termination by Consultant pursuant to Section XI b, the
Client will issue a pro rata portion of the Shares that reflects the
portion of the Term completed by Consultant prior to termination pursuant
to this Section XI.
IX. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered or certified mail, return receipt requested, to
the address set forth below.
a. If to Consultant:
Xxxxxx-Xxxx-Xxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
Fax: xx00 00 00 00 00 00
b. If to Client:
000-000 Xxxx Xxxxxxxx Xx.
Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
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Fax: (000) 000-0000
X. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the Province of BC.
XI. ARBITRATION
Any dispute, difference or question which may arise at any time hereinafter
between the Shareholders touching on the true construction of this Agreement and
the respective rights and obligations of each party hereto to the other shall be
referred to and settled by binding arbitration under the American Arbitration
Association. No arbitration shall be commenced until the aggrieved party shall
send to the other party a written notice describing the problem and stating a
proposed solution ("Settlement Notice"). For Thirty (30) days after the sending
of the Settlement Notice, the parties shall try to settle the dispute in good
faith. During this Thirty (30) day settlement period, each party shall send to
the other an additional written notice with further proposal for resolving the
dispute and responding in detail to the last proposal of the other party. The
contents of the Settlement Notice and of all discussions and writings during the
Thirty (30) day settlement period shall be without prejudice and shall be
privileged as settlement discussion and may not be used in any legal proceedings
or arbitration. The place of arbitration shall be in the Province of BC.
Judgement on the Arbitral award may be entered in any court in the Province of
BCor in any court having jurisdiction. The parties hereby waive all defences as
to personal jurisdiction, venue and sovereign immunity from attachment,
exception and jurisdiction in any proceeding to confirm or enforce the award.
The laws of the Province of BC shall govern all issues during the arbitration.
The decision of the Arbitrator shall be final and finding on the parties.
XII. SEVERABILITY
The provisions contained herein are severable and in the event any of them shall
be held invalid, the Agreement shall be interpreted as if such invalid
provisions were not contained herein.
XIII. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations of the parties. This Agreement may not be modified,
except in writing and signed by all parties hereto.
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XIV. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but both of which taken together shall constitute to
one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
/s/ XXXXXXX VAN MUSSCHER
________________________________
XXXXXXX VAN MUSSCHER
DESTINY MEDIA TECHNOLOGIES INC
By: /s/ Xxxxx Xxxxxxxxxxx
___________________________
Xxxxx Xxxxxxxxxxx
Its: President & CEO
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