EXHIBIT 99.2
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March 25, 2002
Keith Boesky
520 Beirut Ave.
Pacific Palisades, CA
90272
Dear Mr. Boesky:
This letter confirms your engagement as an independent consultant to
Tremor Entertainment, Inc., a Nevada corporation (the "Company"), upon and
subject to the following terms and conditions:
For a six month period commencing as of the effective date of the
Registration Statement (defined below), unless extended by mutual agreement of
the parties hereto or earlier terminated pursuant to the fifth full paragraph
below (the "Term"), you shall provide such consulting and advisory services as
may from time to time be reasonably requested by management of the Company
including, without limitation, strategic counsel form time to time at the
request of the Company (collectively, the "Services"). In connection performing
the Services, you shall work under the direction of, and in coordination with,
the Company's board of directors and shall devote such reasonable time and
efforts as is necessary to perform the Services in a professional and effective
manner.
In consideration of, and in full payment for, the Services, the Company
hereby agrees to issue to you, an aggregate of 50,000 shares of the Company's
common stock, $.001 par value per share (the "Shares").
Nothing herein shall constitute you as an employee or agent of the
Company; it being acknowledged and agreed by the parties that you shall perform
the Services as an independent contractor and shall not have the authority to
obligate, commit or act on behalf of the Company in any manner whatsoever. The
Company shall make no deductions or withholdings from any payments due to you
hereunder for federal, state or local income tax purposes and you shall be
responsible for any taxes and other payments due on the consideration received
hereunder.
Notwithstanding anything to the contrary contained herein, the Company
shall have the right to immediately terminate your engagement hereunder for
Cause (as defined below) at any time during the Term. For purposes hereof,
"Cause" shall mean your: (a) willful failure to perform your material duties
hereunder, (b) engagement in criminal misconduct against the Company, or (c)
commission of an act of fraud or any act in bad faith in connection with your
performance of the Services.
As a consequence of this agreement and the relationship established
hereby, you may obtain from the Company certain confidential and proprietary
information, pricing terms, business plans, sales and marketing techniques,
business prospects, the names and business dealings with suppliers, contractors,
distributors, customers and others, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use (collectively, the "Confidential Information"). You
shall keep confidential, and not disclose to any other person or entity, or take
or use for your own purposes (except as is required in connection with the
performance of your obligations under this agreement) any Confidential
Information, except (i) if such Confidential Information becomes generally known
to the public other than due to your breach of this paragraph; (ii) in
connection with the enforcement of this agreement; or (iii) pursuant to
applicable law, regulation or subpoena. Your obligations pursuant to this
paragraph shall survive the expiration or termination of this agreement and you
hereby agree that, due to the importance to the Company of the Confidential
Information, (a) a monetary remedy for a breach or violation of any provision
hereof may be inadequate and may be impracticable and difficult to prove and (b)
such a breach or violation would cause irreparable harm to the Company.
Accordingly, you hereby agree that the Company shall be entitled with respect to
any such breach or violation or threatened breach or violation, in addition to
any other rights or remedies that the Company may have under applicable law, in
equity or otherwise, to temporary and permanent injunctive relief and/or
specific performance with respect to any such breach, violation or threatened
breach without the necessity of proving actual damages.
You may not subcontract, transfer or otherwise delegate, in whole or in
part, any or your obligations hereunder. Any modification or amendment of, or
any waiver of, or consent to any departure from, any term or provision of this
agreement shall be null and void and without effect unless in writing and signed
by each of the parties hereto. This agreement (i) contains the entire agreement
of the parties, with respect to the subject matter hereof, and supersedes any
and all prior agreements and understandings, oral or otherwise, between the
parties, with respect to such subject matter, and that there are no
restrictions, agreements, arrangements, either oral or written, between the
parties relating to the subject matter hereof which are not fully and accurately
expressed or referred herein; (ii) shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; and (iii) shall be governed by, and
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construed and enforced in accordance with, the laws of the State of Ohio,
without regard to the conflicts of law rules thereof.
You shall be indemnified and held harmless by the Company and its
affiliates from all loss, cost or expenses in respect to any and all mistakes,
errors in judgment or for any act or omission believed by you in good faith to
be within the scope of your authority hereunder, regardless of whether such act
or omission is ineffective or in any way fails to achieve the purposes of this
Agreement; provided, however, you are not exculpated hereby to the extent that
you would be liable to the Company for fraud in the performance of the Services.
You shall not be held to have incurred any liability to the Company or any
person or entity by virtue of any action taken by you or allegedly failed to be
taken by you in the good faith attempt to discharge your duties and services. In
no event shall your liability exceed the value of the total compensation and
consideration (excluding any reimbursement for expenses) as set forth under the
terms and conditions of this Agreement and as already paid to you thereunder.
Any waiver of the terms and/or conditions as set forth within this
agreement shall not operate as a waiver of any other breach or claim of such
terms or conditions or any other term or condition, nor shall any failure to
enforce any provisions hereof operate as a waiver of such provision or of any
other provision hereof. No waiver, unless it by its own terms explicitly so
provides, shall be construed to effect a continuing waiver in any other instance
or for any other purpose, or impair the right the party against whom such waiver
is claimed, in all other instances or for all other purposes, to require full
compliance with such provision.
You may not subcontract, transfer or otherwise delegate, in whole or in
part, any or your obligations hereunder. Any modification or amendment of, or
any waiver of, or consent to any departure from, any term or provision of this
agreement shall be null and void and without effect unless in writing and signed
by each of the parties hereto. This agreement (i) contains the entire agreement
of the parties, with respect to the subject matter hereof, and supersedes any
and all prior agreements and understandings, oral or otherwise, between the
parties, with respect to such subject matter, and that there are no
restrictions, agreements, arrangements, either oral or written, between the
parties relating to the subject matter hereof which are not fully and accurately
expressed or referred herein; (ii) shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; and (iii) shall be governed by, and construed and enforced in
accordance with, the laws of the State of California, without regard to the
conflicts of law rules thereof.
The parties hereto hereby warrant and represents that they have the
full power and authority to execute and deliver this agreement and to perform
the obligations as contained herein.
[SIGNATURE PAGE TO FOLLOW]
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Kindly confirm your acceptance and agreement to the foregoing by
signing this agreement below, which agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
Sincerely,
Tremor Entertainment, Inc.
By: /s/ Steve Oshinsky
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Name: Steve Oshinsky
Title: Chief Executive Officer
ACCEPTED AND AGREED TO AS OF
March 25, 2002 BY:
/s/ Keith Boesky
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Keith Boesky
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