-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FuUmaXbmK16/E52VBiyUB2cpQv3ioiGkhnc7CIVVeI+qq0jdZ6ohdaEWgV0lhI/y B4vMPCkwRWgiIEl8krjiSg== /in/edgar/work/20000921/0000950148-00-002007/0000950148-00-002007.txt : 20000924 0000950148-00-002007.hdr.sgml : 20000924 ACCESSION NUMBER: 0000950148-00-002007 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000921 GROUP MEMBERS: TDK CORPORATION GROUP MEMBERS: TDK U.S.A. CORPORATION GROUP MEMBERS: TDK USA CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SOUND SOURCE INTERACTIVE INC /DE/ CENTRAL INDEX KEY: 0000907237 STANDARD INDUSTRIAL CLASSIFICATION: [7372 ] IRS NUMBER: 954264046 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-46675 FILM NUMBER: 726435 BUSINESS ADDRESS: STREET 1: 26115 MUREAU RD STREET 2: STE B CITY: CALABASAS STATE: CA ZIP: 91302-3126 BUSINESS PHONE: 8188780505 MAIL ADDRESS: STREET 1: 26115 MUREAU ROAD STREET 2: SUITE B CITY: CALABASAS STATE: CA ZIP: 91302-3126 FORMER COMPANY: FORMER CONFORMED NAME: SOUND SOURCE INTERACTIVE INC /DE/ DATE OF NAME CHANGE: 19951011 FORMER COMPANY: FORMER CONFORMED NAME: BASIC SCIENCE ASSOCIATES INC /DE/ DATE OF NAME CHANGE: 19940810 FORMER COMPANY: FORMER CONFORMED NAME: SOUND SOURCE INTERACTIVE DATE OF NAME CHANGE: 19940525 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TDK USA CORP CENTRAL INDEX KEY: 0000851343 STANDARD INDUSTRIAL CLASSIFICATION: [ ] STATE OF INCORPORATION: NY FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 12 HARBOR PARK DR CITY: PORT WASHINGTON STATE: NY ZIP: 11050 BUSINESS PHONE: 5166250100 MAIL ADDRESS: STREET 1: 12 HARBOR PARK DRIVE CITY: PORT WASHINGTON STATE: NY ZIP: 11050 SC 13D 1 v65812sc13d.txt SCHEDULE 13D 1 ---------------------------- OMB APPROVAL ---------------------------- ---------------------------- OMB Number: 3235-0145 Expires: October 31, 2002 Estimated average burden hours per response. . . .14.90 ---------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. __________)* Sound Source Interactive, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 83608K206 - -------------------------------------------------------------------------------- (CUSIP Number) Hillel T. Cohn, Esq. - -------------------------------------------------------------------------------- Squire, Sanders & Dempsey L.L.P. - -------------------------------------------------------------------------------- 801 South Figueroa Street, 14th Floor - -------------------------------------------------------------------------------- Los Angeles, California 90017 - -------------------------------------------------------------------------------- (213) 624-2500 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 11, 2000 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. Seess.240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes.) POTENTIAL PERSONS WHO ARE TO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER. 2 CUSIP No.: 83608K206
- ---------------------------------------------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). TDK U.S.A. Corporation - ---------------------------------------------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) ....................................................................................... (b) ....................................................................................... - ---------------------------------------------------------------------------------------------------------------------- 3. SEC Use Only ................................................................................... - ---------------------------------------------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): WC - ---------------------------------------------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ............ - ---------------------------------------------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: New York - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- Number of Shares 7. Sole Voting Power: 4,750,000 Beneficially by Owned by Each Reporting Person With 8. Shared Voting Power: 6,034,634 9. Sole Dispositive Power: 4,750,000 10. Shared Dispositive Power: 0 - ---------------------------------------------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person ..........................4,750,000 - ---------------------------------------------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ........... - ---------------------------------------------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) ........................................44.6% - ---------------------------------------------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instruction): CO
2 3 CUSIP No.: 0-28604
- ------------------------------------------------------------------------------------------------------------------------------- .........1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). TDK Corporation - ---------------------------------------------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) ....................................................................................... (b) ....................................................................................... - ---------------------------------------------------------------------------------------------------------------------- 3. SEC Use Only ................................................................................... - ---------------------------------------------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): WC - ---------------------------------------------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ............ - ---------------------------------------------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Japan - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- Number of Shares 7. Sole Voting Power: 4,750,000 Beneficially by Owned by Each Reporting Person With 8. Shared Voting Power: 6,034,634 9. Sole Dispositive Power: 4,750,000 10. Shared Dispositive Power: 0 - -------------------- ------------------------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person ..........................4,750,000 - ---------------------------------------------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ........... - ---------------------------------------------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) ........................................44.6% - ---------------------------------------------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instruction): CO
3 4 ITEM 1. SECURITY AND ISSUER This Schedule 13D relates to shares of the common stock, $.001 par value (the "Common Stock"), of Sound Source Interactive, Inc. (the "Company"). The principal business and executive offices of the Company are located at 26115 Mureau Road, Suite B, Calabasas, California 91302-3126. ITEM 2. IDENTITY AND BACKGROUND This Schedule 13D is being filed by TDK U.S.A. Corporation, a New York corporation ("TUC"). The principal business and executive offices of TUC are located at 12 Harbor Park Drive, Port Washington, NY 11050. TUC is a wholly-owned subsidiary of TDK Corporation, a Japanese corporation that is publicly traded on several stock exchanges, principally the Tokyo Stock Exchange ("TDK"). TUC serves as TDK's holding company for the indirect U.S. subsidiaries through which TDK conducts its operations in the U.S. Through these subsidiaries, TUC is engaged in the manufacture, sale and distribution of blank recording media (optical and magnetic), electronic materials and components, and integrated circuits of LAN/WAN embedded modem and set-top box applications. Information regarding each of the directors and executive officers of TUC is set forth below: Kenichi Aoshima TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 President, CEO and a Director of TUC Citizen of Japan Aniceto Evangelista TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Vice President and Treasurer of TUC Citizen of U.S.A. Kuniyoshi Matsui TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Director of TUC Citizen of Japan Shiro Nomi TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Director of TUC Citizen of Japan Tsutae (Den) Suzuki TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Director of TUC Citizen of Japan Francis J. Sweeney, Jr. TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Executive Vice President, COO, General Counsel, Secretary and a Director of TUC Citizen of U.S.A. 4 5 Jeffrey G. Williams TDK U.S.A. Corporation 12 Harbor Park Drive Port Washington, NY 11050 Vice President and Assistant Secretary of TUC Citizen of U.S.A. During the last five years, neither TUC nor, to the best knowledge of TUC, any director or executive officer of TUC, has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. The sole shareholder of TUC is TDK. The principal business and executive offices of TDK are located at 1-13-1, Nihonbashi, Chuo-ku, Tokyo 103, Japan. TDK manufactures a broad range of magnetic recording media and electronic components. Information regarding each of the directors and executive officers of TDK is set forth below: Hajime Sawabe TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan President, CEO and a Director Citizen of Japan Motoyuki Kurihara TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Vice President and a Director Citizen of Japan Shunjiro Saito TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Vice President and a Director Citizen of Japan Joichiro Ezaki TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Managing Director Citizen of Japan Hirokazu Nakanishi 5 6 TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Managing Director Citizen of Japan Jiro Iwasaki TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Managing Director Citizen of Japan Suguru Takayama TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Takeshi Owada TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Shinji Yoko TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Takeshi Nomura TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Yoshinori Hashimoto TDK Corporation 6 7 Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Kiyoshi Ito TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan Katsuhiro Fujino TDK Corporation Corporate Headquarters 1-13-1, Nihonbashi Chuo-ku Tokyo 103 Japan Executive Director Citizen of Japan During the last five years, neither TDK nor, to the best knowledge of TUC, any director or executive officer of TDK, has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION On September 8, 2000, the Company and TUC entered into a common stock purchase agreement (the "Purchase Agreement"), pursuant to which TUC agreed to purchase, and the Company agreed to sell, a total of 16,667,000 shares of Common Stock, for the purchase price of $.30 per share and an aggregate purchase price of $5,000,100. On September 11, 2000, TUC acquired 4,750,000 shares of Common Stock for an aggregate purchase price of $1,425,000 paid out of the working capital of TUC in cash by wire transfer on that date (the "Initial Closing"). Pursuant to the Purchase Agreement and upon the fulfillment of certain conditions therein, TUC has agreed to purchase, and the Company has agreed to sell, the additional 11,917,000 shares of Common Stock for an aggregate purchase price of $3,575,100 (the "Subsequent Closing") immediately upon the filing of an amendment to the Company's Certificate of Incorporation (the "Charter Amendment") to increase the number of shares of Common Stock the Company is authorized to issue from 20,000,000 to 50,000,000. ITEM 4. PURPOSE OF TRANSACTION TUC intends to acquire a controlling interest in the Company through the purchase of the Common Stock under the Purchase Agreement. It is also the intent of TUC, and a condition precedent to TUC's consummation of the Subsequent Closing, that three of the five members of the current board of directors of the Company (Richard Azevedo, Mark A. James and Samuel L. Poole) resign and that the resulting vacancies be filled by the remaining directors' appointment of nominees designated by TUC. In the event that the three designated directors have not resigned as of the Subsequent Closing, TUC may, at its sole election, waive such condition and immediately following the Subsequent Closing execute and deliver to the Company a Written Consent of Stockholders of the Company Acting in Lieu of Special Meeting for the purpose of removing from office without cause all of the then acting directors of the Company and electing in their place and stead the five following directors designated by TUC: Kenichi Aoshima, Vincent J. Bitetti, Masatoshi Shikanai, Shin Tanabe, and John T. Wholihan. Except as described in this Schedule 13D, TUC has no present plans or proposals which would relate to or result in any of the items listed in subparts (b), (c), (e), (f), (g), (h), (i) and (j) of Item 4. 7 8 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) TUC beneficially owns an aggregate of 4,750,000 shares of Common Stock of the Company, or approximately 44.6% of the outstanding Common Stock of the Company as of September 11, 2000. Upon consummation of the Subsequent Closing and based upon the number of shares of Common Stock currently outstanding, TUC will eventually become the beneficial owner of an aggregate of 16,667,000 shares of Common Stock of the Company, or approximately 73.8% of the outstanding Common Stock of the Company as of the date of the successful consummation of the Subsequent Closing. TDK (through TUC) beneficially owns an aggregate of 4,750,000 shares of Common Stock of the Company, or approximately 44.6% of the outstanding Common Stock of the Company as of September 11, 2000. Upon consummation of the Subsequent Closing and based upon the number of shares of Common Stock currently outstanding, TDK (through TUC) will eventually become the beneficial owner of an aggregate of 16,667,000 shares of Common Stock of the Company, or approximately 73.8% of the outstanding Common Stock of the Company as of the date of the successful consummation of the Subsequent Closing. Except as disclosed in this Schedule 13D, neither TDK nor, to the best knowledge of TUC, any of the directors or executive officers of TUC or TDK, beneficially owns any shares of the Common Stock. (b) Vincent J. Bitetti ("Bitetti"), the Chief Executive Officer of the Company and beneficial owner of 1,284,634 shares of Common Stock (which amount includes presently exercisable options to purchase 50,000 shares of Common Stock) constituting approximately 12% of all of the issued and outstanding capital stock of the Company, executed an Irrevocable Proxy as of September 8, 2000 granting to TUC an irrevocable proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law to vote, or to execute and deliver written consents or otherwise act with respect to, all shares of capital stock of the Company now owned or hereafter acquired by Bitetti, to the same extent and with the same effect as he might or could do under any applicable laws or regulations governing the rights and powers of stockholders of a Delaware corporation in connection with all matters on which stockholders are entitled to vote, EXCEPT, that for so long as either that certain Stockholders Voting Agreement, by and among Vincent J. Bitetti, Eric H. Winston, ASSI, Inc., and the Company, dated as of April 30, 1996 (the "Voting Agreement") or Section 5(w) of that certain Underwriting Agreement, by and among Vincent J. Bitetti, Eric H. Winston, The Boston Group, L.P., and Joseph Stevens & Company, L.P., dated as of July 1, 1996 (the "Underwriting Agreement") remain in effect, TUC shall not be permitted to vote said stock in connection with the election of directors of the Company or any other matters covered by the Voting Agreement or the Underwriting Agreement. The proxy may be exercised by TUC for the period beginning on September 8, 2000 and ending on the date that Bitetti no longer holds any stock of the Company, EXCEPT that TUC is not permitted to vote said stock pursuant to the irrevocable proxy from and after the consummation of the Subsequent Closing, unless the stockholding percentage of TUC in the Company is at any time reduced to fifty percent (50%) or less of the total issued and outstanding capital stock of the Company, in which case TUC will again be permitted to vote said stock pursuant to the irrevocable proxy during such period of time. The proxy shall remain in full force and effect and be enforceable against any donee, transferee or assignee of the stock. Accordingly, with certain limitations described above, TUC has the power to vote approximately 56.6% of the shares of all of the issued and outstanding capital stock of the Company pursuant to the terms of the irrevocable proxy described above. (c) Not applicable. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER TUC does not have any contract, arrangement, understanding or relationship with any person with respect to any securities of the Company, including respecting voting or transfer of Company securities or joint venture, finder's fees or the like, EXCEPT for the following: (1) the Irrevocable Proxy described above, and (2) a certain Registration Rights Agreement dated as of September 8, 2000, by and between TUC and the Company which grants TUC certain rights to request that the Company effect a registration of TUC's securities under the Securities Act of 1933 or to have TUC's securities included in certain other registrations effected by the Company. 8 9 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 1 - Certification Regarding Joint Filing. Exhibit 2 - Irrevocable Proxy, dated as of September 8, 2000, by Vincent J. Bitetti (in favor of TUC) Exhibit 3 - Registration Rights Agreement, dated as of September 8, 2000, by and between TUC and the Company Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. /s/ Kenichi Aoshima - -------------------------------------------------------------------------------- TDK U.S.A. CORPORATION By: Kenichi Aoshima Its: President and CEO Dated: September 21, 2000 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. /s/ Hajime Sawabe - -------------------------------------------------------------------------------- TDK CORPORATION By: Hajime Sawabe Its: President and CEO Dated: September 21, 2000 The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative (other than an executive officer or general partner of the filing person), evidence of the representative's authority to sign on behalf of such person shall be filed with the statement; provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature. ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001) 9 EX-1 2 v65812ex1.txt EXHIBIT 1 1 EXHIBIT 1 CERTIFICATION REGARDING JOINT FILING OF SCHEDULE 13D PURSUANT TO RULE 13D-1(k) OF THE SECURITIES AND EXCHANGE COMMISSION TDK U.S.A. Corporation and TDK Corporation do hereby certify that the Schedule 13D to which this certification is attached as Exhibit 1 is being filed with the Securities and Exchange Commission on behalf of the undersigned. Dated: September 21, 2000 /s/ Kenichi Aoshima - -------------------------------------------------------------------------------- TDK U.S.A. CORPORATION By: Kenichi Aoshima Its: President and CEO /s/ Hajime Sawabe - -------------------------------------------------------------------------------- TDK CORPORATION By: Hajime Sawabe Its: President and CEO EX-2 3 v65812ex2.txt EXHIBIT 2 1 Exhibit 2 SOUND SOURCE INTERACTIVE, INC. IRREVOCABLE PROXY The undersigned agrees to, and hereby grants to TDK USA Corporation, a New York corporation ("TUC"), an irrevocable proxy pursuant to the provisions of Section 212 of the Delaware General Corporation Law to vote, or to execute and deliver written consents or otherwise act with respect to, all shares of capital stock (the "Stock") of Sound Source Interactive, Inc. (the "Corporation") now owned or hereafter acquired by the undersigned as fully, to the same extent and with the same effect as the undersigned might or could do under any applicable laws or regulations governing the rights and powers of stockholders of a Delaware corporation in connection with all matters on which stockholders are entitled to vote, EXCEPT, that for so long as either that certain Stockholders Voting Agreement, dated as of April 30, 1996 (the "Voting Agreement") or Section 5(w) of that certain Underwriting Agreement, dated as of July 1, 1996 (the "Underwriting Agreement") remain in effect, TUC shall not be permitted to vote the Stock in connection with the election of directors of the Corporation or any other matters covered by the Voting Agreement or the Underwriting Agreement. It is further understood by the undersigned that this proxy may be exercised by TUC for the period beginning on the date hereof and ending on the date that the undersigned no longer holds any Stock, EXCEPT that TUC shall not be permitted to vote the Stock pursuant to this irrevocable proxy from and after the consummation of the Subsequent Closing as defined in the Common Stock Purchase Agreement dated as of even date herewith (the "Common Stock Purchase Agreement"), unless TUC's stockholding percentage in the Corporation is at any time reduced to fifty percent (50%) or less of the total issued and outstanding capital stock of the Corporation, in which case TUC will again be permitted to vote the Stock pursuant to this irrevocable proxy during such period of time. The undersigned hereby affirms that this proxy is given as a condition of said Common Stock Purchase Agreement and as such is coupled with an interest and is irrevocable. THIS PROXY SHALL REMAIN IN FULL FORCE AND EFFECT AND BE ENFORCEABLE AGAINST ANY DONEE, TRANSFEREE OR ASSIGNEE OF THE STOCK. Dated this 8th day of September, 2000. ------------------------------- Vincent J. Bitetti, Stockholder EX-3 4 v65812ex3.txt EXHIBIT 3 1 Exhibit 3 SOUND SOURCE INTERACTIVE, INC. REGISTRATION RIGHTS AGREEMENT SEPTEMBER 8, 2000 2 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as of this 8th day of September, 2000, by and between SOUND SOURCE INTERACTIVE, INC., a Delaware corporation ("SSI/DE") and TDK USA CORPORATION, a New York corporation (the "Purchaser"). R E C I T A L S A. WHEREAS, SSI/DE and Purchaser are parties to a Common Stock Purchase Agreement, dated as of the even date herewith (the "Purchase Agreement"), pursuant to which SSI/DE has agreed to issue and sell to Purchaser, and Purchaser has agreed to purchase and acquire from SSI/DE, certain shares of the common stock of SSI/DE. B. WHEREAS, the execution, delivery and performance by SSI/DE of this Agreement is a material inducement and condition for Purchaser to enter into and consummate the transactions contemplated by the Purchase Agreement. A G R E E M E N T NOW, THEREFORE, in consideration of the forgoing recitals and the mutual covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: 1. REGISTRATION RIGHTS SSI/DE hereby grants to Purchaser the registration rights set forth in this Section 1, with respect to the Registrable Securities (as hereinafter defined) to be purchased and owned by Purchaser pursuant to the Purchase Agreement. SSI/DE and Purchaser agree that the registration rights provided herein set forth the sole and entire agreement on the subject matter between SSI/DE and Purchaser. 1.1 Definitions. As used in this Section 1: 1.1.1 The terms "register", "registered", and "registration" refer to a registration effected by filing with the Securities and Exchange Commission (the "SEC") a registration statement (the "Registration Statement") in compliance with the Securities Act of 1933, as amended (the "1933 Act"), and the declaration or ordering by the SEC of the effectiveness of such Registration Statement. 1.1.2 The term "Registrable Securities" means (i) the shares of Common Stock of SSI/DE to be issued to Purchaser pursuant to the Purchase Agreement and (ii) any Common Stock issued as a dividend or other distribution with respect to or in exchange for or in replacement of the shares referenced in clause (i) above. In the event of any recapitalization by SSI/DE, whether by stock split, reverse stock split, stock dividend or the like, the number of 3 shares of Registrable Securities used throughout this Agreement for various purposes shall be proportionately increased or decreased. 1.2 Demand Registration 1.2.1 Demand for Registration. If SSI/DE shall receive from Purchaser a written demand (a "Demand Registration") that SSI/DE effect any registration under the 1933 Act with respect to all or a part of the Registrable Securities held by Purchaser, the aggregate proceeds of which exceed $5,000,000, SSI/DE will use its best efforts to effect such registration as soon as practicable as may be so demanded and as will permit or facilitate the sale and distribution of all or such portion of Purchaser's Registrable Securities as are specified in such demand; provided that SSI/DE shall not be obligated to take any action to effect any such registration, pursuant to this Section 1.2: (a) After SSI/DE has effected an aggregate of two such registrations demanded by Purchaser pursuant to this Section 1.2 and the sales of the shares of Common Stock under such registrations have closed; or (b) If SSI/DE shall furnish to Purchaser a certificate signed by the President of SSI/DE, stating that in the good faith judgment of the Board of Directors of SSI/DE it would be seriously detrimental to SSI/DE and its shareholders for such Registration Statement to be filed at the date filing would be required, in which case SSI/DE shall have an additional period of not more than 180 days within which to file such Registration Statement; provided, however, that SSI/DE shall not use this right more than once in any twelve-month period. 1.2.2 Underwriting. If Purchaser proposes to distribute its shares by means of an underwriting, then Purchaser shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected by Purchaser to perform the underwriting. 1.3 Company Registration 1.3.1 If, at any time or from time to time, SSI/DE shall determine to register any of its securities, either for its own account or the account of security holders, other than a registration relating solely to employee benefit plans, a registration on Form S-4 relating solely to an SEC Rule 145 transaction, or a registration pursuant to Section 1.2 hereof, SSI/DE will: (a) promptly give to Purchaser written notice thereof (which shall include a list of the jurisdictions in which SSI/DE intends to attempt to qualify such securities under the applicable blue sky or other state securities laws); and (b) include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests, made within 20 days after receipt of such written notice from SSI/DE, by Purchaser, except as set forth in Section 1.3.2 below. 1.3.2 Underwriting. If the registration of which SSI/DE gives notice is for a registered public offering involving an underwriting, SSI/DE shall so advise Purchaser as a part of the written notice given pursuant to Section 1.3.1(a). In such event, the right of Purchaser to 2 4 registration pursuant to this Section 1.3 shall be conditioned upon Purchaser's participation in such underwriting and the inclusion of Purchaser's Registrable Securities in the underwriting to the extent provided herein. If Purchaser proposes to distribute its securities through such underwriting, Purchaser shall, together with SSI/DE, enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such underwriting in accordance with Section 1.3.3 hereof. Notwithstanding any other provision of this Section 1.3.2, if the underwriter advises SSI/DE in writing that marketing factors require a limitation of the number of shares to be underwritten, the underwriter may limit the securities to be included in such registration. SSI/DE shall so advise all holders of securities requesting registration, and SSI/DE will include in such registration: (a) first, the securities that SSI/DE proposes to sell, (b) second, the Registrable Securities requested to be included in such registration, allocated pro rata based on the number of shares thereof requested to be included by each holder thereof, and (c) third, any other securities requested to be included in such registration, allocated pro rata based on the number of securities requested to be included by each holder thereof. 1.3.3 Selection of Underwriter. The underwriter selected by SSI/DE for purposes of any underwritten public offering pursuant to Section 1.3 hereof shall be an investment bank reasonably acceptable to both SSI/DE and Purchaser. 1.3.4 Right to Terminate Registration. SSI/DE shall have the right to terminate or withdraw any registration initiated by it under this Section 1.3 prior to the effectiveness of such registration, whether or not any holder of Registrable Securities has elected to include Registrable Securities in such registration. 1.4 Form S-3 Registrations. If SSI/DE shall receive from Purchaser a written request (a "Form S-3 Request") that SSI/DE effect a registration on Form S-3 (or any successor form) and any related qualification or compliance with respect to all or a portion of the Registrable Securities owned by Purchaser, SSI/DE shall as soon as practicable, effect such registration and all such qualifications and compliances as may be set forth in the Form S-3 Request and as would permit or facilitate the sale and distribution of the number of shares of Registrable Securities of Purchaser set forth therein; provided, however, that SSI/DE shall not be obligated to effect any such registration, qualification or compliance pursuant to this Section 1.4 if: (i) Form S-3 (or a successor form) is not then available to SSI/DE for such public offering by Purchaser, (ii) SSI/DE has effected two (2) such registrations within the preceding twelve (12) month period, or (iii) SSI/DE shall furnish to Purchaser a certificate signed by the President of SSI/DE, stating that in the good faith judgment of the Board of Directors of SSI/DE, it would be seriously detrimental to SSI/DE and its shareholders for such Form S-3 registration statement to be filed at such time, in which event SSI/DE shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than sixty (60) days after receipt of the Form S-3 Request; provided, however, that SSI/DE shall not use this right more than once in any six-month period. 1.5 Expenses of Registration All expenses incurred in connection with (i) the first two registrations effected pursuant to Section 1.2 at the request of Purchaser and (ii) all registrations effected pursuant to Section 1.3 hereof, including without limitation all registration, filing, and qualification fees (including blue sky fees and expenses), printing expenses, escrow fees, fees and disbursements of counsel for SSI/DE, expenses of any special audits incidental to 3 5 or required by such registrations, and the fees and disbursements of one special counsel for Purchaser in connection with such registrations, shall be borne by SSI/DE; provided, however, that SSI/DE shall not be required to pay stock transfer taxes or underwriters' discounts, or commissions relating to Registrable Securities. Notwithstanding anything to the contrary above, SSI/DE shall not be required to pay for any expenses of any registration proceeding requested by Purchaser pursuant to Section 1.2 if the registration request is subsequently withdrawn at the request of Purchaser, unless Purchaser agrees to forfeit its right to one demand registration pursuant to Section 1.2. Notwithstanding the preceding sentence, however, (a) if at the time of the withdrawal, Purchaser has learned of a material adverse change in the condition, business, or prospects of SSI/DE from that known to Purchaser at the time of their request for registration, of which SSI/DE had knowledge at the time of such request, or (b) in the event that such withdrawal is requested on account of the Registration Statement not being declared effective within at least one hundred and twenty (120) days of the date of its filing with the SEC, then Purchaser shall not be required to pay any of said expenses and shall retain their rights pursuant to Section 1.2. 1.6 Obligations of SSI/DE. Whenever required under this Section 1 to effect the registration of any Registrable Securities, SSI/DE shall, as expeditiously as reasonably possible: 1.6.1 Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its diligent best efforts to cause such registration statement to become effective, and keep such registration statement effective for up to one hundred and twenty (120) days or until Purchaser has completed the distribution relating thereto. 1.6.2 Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of all securities covered by such registration statement. 1.6.3 Furnish to Purchaser such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the 1933 Act, and such other documents as Purchaser may reasonably request in order to facilitate the disposition of Registrable Securities owned by Purchaser. 1.6.4 Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by Purchaser; provided that SSI/DE shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. 1.6.5 In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. Purchaser shall also enter into and perform its obligations under such an agreement. 1.6.6 Cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities issued by SSI/DE are then listed. 4 6 1.6.7 Provide a transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities, in each case not later that the effective date of such registration. 1.6.8 Notify Purchaser at any time when a prospectus relating thereto is required to be delivered under the 1933 Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. 1.6.9 Furnish to Purchaser, if requesting registration of Registrable Securities pursuant to this Section 1, on the date that such Registrable Securities are delivered to the underwriters for sale in connection with a registration pursuant to this Section 1, if such securities are being sold through underwriters, or on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated such date, of the counsel representing SSI/DE for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to Purchaser, and (ii) a letter, dated such date, from the independent accountants of SSI/DE, in form and substance as is customarily given by independent accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to Purchaser. 1.7 Indemnification 1.7.1 SSI/DE will, and does hereby undertake to, indemnify and hold harmless Purchaser, each of Purchaser's officers, directors and agents, and each person controlling Purchaser, with respect to any registration, qualification, or compliance effected pursuant to this Section 1, and each underwriter, if any, and each person who controls within the meaning of Section 15 of the 1933 Act any underwriter, of the Registrable Securities held by or issuable to Purchaser, against all claims, losses, damages, and liabilities (or actions in respect thereto) to which they may become subject under the 1933 Act, the Securities Exchange Act of 1934, as amended, (the "1934 Act"), or other federal or state law arising out of or based on (i) any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular, or other similar document (including any related Registration Statement, notification, or the like) incident to any such registration, qualification, or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any violation or alleged violation by SSI/DE of any federal, state or common law rule or regulation applicable to SSI/DE in connection with any such registration, qualification, or compliance, and will reimburse, as incurred, Purchaser, each underwriter, and each director, officer, agent and controlling person, for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action; provided, however, that SSI/DE shall have no obligation hereunder to indemnify Purchaser or any of Purchaser's directors, officers, agents or controlling persons to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement (or alleged untrue statement) or omission (or alleged omission) of a material fact contained in such Registration Statement, prospectus, offering circular, or other 5 7 similar document in reliance upon and in conformity with written information furnished to SSI/DE by an instrument duly executed by Purchaser and stated to be specifically for use therein. 1.7.2 Purchaser will, if Registrable Securities held by or issuable to Purchaser are included in such registration, qualification, or compliance, indemnify SSI/DE, each of its directors, officers, legal counsel and accountants and each underwriter, if any, of SSI/DE's Securities covered by such a Registration Statement, each person controlling SSI/DE or such underwriter, within the meaning of Section 15 of the Securities Act, against all claims, losses, damages, and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such Registration Statement, prospectus, offering circular, or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse, as incurred, SSI/DE, and each such underwriter or other person, for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) of a material fact was made in such Registration Statement, prospectus, offering circular, or other similar document, in reliance upon and in conformity with written information furnished to SSI/DE by an instrument duly executed by Purchaser and stated to be specifically for use therein; provided, however, that the liability of Purchaser hereunder shall be limited to the gross proceeds received by Purchaser from the sale of securities under such Registration Statement. In no event will Purchaser be required to enter into any agreement or undertaking in connection with any registration under this Section 1 providing for any indemnification or contribution obligations on the part of Purchaser greater than Purchaser's obligations under this Section 1.7.2 and Section 1.7.4 hereof, respectively. 1.7.3 Each party entitled to indemnification under this Section 1.7 (the "Indemnified Party") shall give notice to the party required to provide such indemnification (the "Indemnifying Party") of any claim as to which indemnification may be sought promptly after such Indemnified Party has actual knowledge thereof, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be subject to approval by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense with its separate counsel at the Indemnifying Party's expense if representation of such Indemnified Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by such counsel in such proceeding; and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1.7, except to the extent that such failure to give notice shall materially adversely affect the Indemnifying Party in the defense of any such claim or any such litigation. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such Indemnified Party, of a release from all liability in respect to such claim or litigation. 6 8 1.7.4 In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Sections 1.7.1 or 1.7.2 hereof is for any reason held by a court of competent jurisdiction to be unenforceable by an Indemnified Party with respect to any claim, loss, damage, liability, action or expense suffered by such Indemnified Party referred to therein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such claim, loss, damage, liability or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand, and of the Indemnified Party on the other (including, in each case, that of their respective directors, officers, employees and agents), in connection with the statements or omissions which resulted in such claim, loss, damage, liability or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party on the one hand, and of the Indemnified Party on the other (including, in each case, that of their respective directors, officers, employees and agents), shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by or on behalf of the Indemnified Party on the one hand, or by or on behalf of the Indemnified Party on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, however, that in no event shall the amount of any contribution by Purchaser hereunder exceed the gross proceeds received by Purchaser from the sale of securities pursuant to the Registration Statement in question. 1.8 Information by Purchaser. Purchaser shall furnish to SSI/DE such information regarding Purchaser, and the distribution proposed by Purchaser, as SSI/DE may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification, or compliance referred to in this Section 1. 1.9 Transfer of Registration Rights. The rights of Purchaser contained in Sections 1.2 and 1.3 hereof, to cause SSI/DE to register the Registrable Securities, may be assigned or otherwise conveyed to a transferee or assignee of Registrable Securities, who shall have the same rights and obligations as Purchaser has under this Section 1; provided that (i) such transferee or assignee is an "affiliate" of Purchaser under the meaning of Rule 12b-2 promulgated under the 1934 Act, or (ii) such transferee or assignee acquires not less than fifteen percent (15%) of the Registrable Securities held by Purchaser (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits, and the like), and; provided further, that SSI/DE is given written notice by Purchaser at the time of or within a reasonable time after said transfer stating the name and address of said transferee or assignee and identifying the securities with respect to which such registration rights are being assigned. 1.10 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, SSI/DE shall not, without the prior written consent of Purchaser, enter into any agreement with any other shareholder of SSI/DE giving the other shareholder any registration rights which are pari passu with or take priority over the registration rights granted to Purchaser hereunder. 1.11 Rule 144 Reporting. With a view to making available to Purchaser the benefits of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to the public without registration, SSI/DE agrees to use its best efforts to: 7 9 1.11.1 Make and keep current public information available, as those terms are understood and defined in Rule 144 promulgated by the SEC under the 1933 Act ("Rule 144") or any similar or analogous rule promulgated under the 1933 Act, at all times after the effective date of the first registration filed by SSI/DE for an offering of its securities to the general public; 1.11.2 File with the SEC, in a timely manner, all reports and other documents required of SSI/DE under the 1934 Act; and 1.11.3 So long as Purchaser owns any Registrable Securities, furnish to Purchaser upon request: a written statement by SSI/DE as to its compliance with the reporting requirements of the 1934 Act (at any time after it has become subject to such reporting requirements); a copy of the most recent annual or quarterly report of SSI/DE; and such other reports and documents as Purchaser may reasonably request in availing itself of any rule or regulation of the SEC allowing it to sell any such securities without registration. 1.12 "Market Stand-Off" Agreement. Purchaser hereby agrees that during the 180-day period following the effective date of a registration statement of SSI/DE filed under the 1933 Act covering the public offering of shares of SSI/DE's Common Stock, Purchaser shall not, to the extent requested by the managing underwriter, sell or otherwise transfer or dispose of (other than to donors who agree to be similarly bound) any Common Stock of SSI/DE held by them at any time during such period except Common Stock included in such registration; provided, however, that all officers and directors of SSI/DE and all other persons with registration rights (whether or not pursuant to this Agreement) enter into similar agreements. In order to enforce the foregoing covenant, SSI/DE may impose stop-transfer instructions with respect to the Registrable Securities of Purchaser (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. 1.13 Expiration of Rights. The registration rights granted under this Section 1 shall (i) expire five (5) years from the date of this Agreement, and (ii) may not be exercised during such time as Purchaser may legally sell all of the Registrable Securities pursuant to Rule 144(k) promulgated under the 1933 Act or under any other provisions of Rule 144 in a single ninety (90) day period. 2. MISCELLANEOUS 2.1 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California as applied to agreements among California residents, made and to be performed entirely within the State of California. 2.2 Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. 2.3 Separability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall, to the extent practicable, be modified so as to make it valid, legal and enforceable and to retain as nearly as practicable the intent of the parties, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 8 10 2.4 Amendment and Waiver. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely), with the written consent of SSI/DE and Purchaser. Any amendment or waiver effected in accordance with this paragraph shall be binding upon Purchaser, each future holder of Registrable Securities, and SSI/DE. 2.5 Notices, etc. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery or on the third day following mailing by registered or certified mail, return receipt requested, postage prepaid, addressed: (a) if to Purchaser, at Purchaser's address as set forth under Purchaser's signature at the end of this Agreement, or at such other address as Purchaser shall have furnished to SSI/DE in writing, or (b) if to SSI/DE, at its address as set forth at the end of this Agreement, or at such other address as SSI/DE shall have furnished to Purchaser in writing. 2.6 Fees and Expenses. The parties hereto shall each bear their respective legal, accounting and other costs and expenses incurred by them in connection with the negotiation, preparation, execution and delivery of this Agreement and any other related agreements. If legal action is brought by, or on behalf of, Purchaser to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and legal costs in connection therewith. 2.7 Titles and Subtitles. The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 2.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 2.9 Delays or Omissions Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to Purchaser, upon any breach or default of SSI/DE under this Agreement, shall impair any such right, power or remedy of Purchaser nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of Purchaser, or any waiver on the part of Purchaser of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to Purchaser, shall be cumulative and not alternative. [SIGNATURES ON FOLLOWING PAGE] 9 11 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties as of the date first above written. SOUND SOURCE INTERACTIVE, INC., a Delaware corporation By ------------------------------------------- Vincent J. Bitetti, CEO TDK USA CORPORATION a New York corporation By ------------------------------------------- Kenichi Aoshima, President -----END PRIVACY-ENHANCED MESSAGE-----