EXHIBIT 99.4
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Tremor Entertainment Inc.
2621 West Empire Avenue
Burbank, CA 91504
January 1, 2002
Steve Oshinsky
23350 Water Circle
Boca Raton, FL 33486
Dear Mr. Oshinsky:
1. This letter confirms that, for and in consideration of services
performed by you for Tremor Entertainment Inc. (the "Company") and Tremor Games,
Inc., its wholly-owned subsidiary, for the period prior to December 31, 2001
(collectively, the "Services"), the Company issues to you 500,000 shares of the
Company's common stock, par value $.001 per share (the "Shares"). The Shares are
being issued to you by the Company in reliance on the exemption from
registration under the Securities Act of 1933, as amended (the "Securities
Act"), by virtue of Section 4(2) and Regulation D promulgated thereunder.
2. In connection with the issuance of the Shares, you represent and
warrant that: (1) you are aware of what constitutes, and fully understand the
definition of, an "accredited investor," as that term is defined in Regulation D
promulgated under the Securities Act and that you are an "accredited investor"
for purpose of said Regulation D; (2) you have sufficient net worth to be able
to bear the economic risks associated with holding the Shares for an indefinite
period of time or with sustaining a loss of your entire investment in the
Company; and (3) you are and will be acquiring the Shares for your own account,
and not with a view to any resale or distribution, in whole or in part, in
violation of the Securities Act or any applicable securities laws. You
acknowledge that the Company is relying upon the truth and accuracy of the
foregoing representations and warranties for purposes of qualifying for
exemptions from registration under the Securities Act and applicable state
securities laws.
3. You further acknowledge and agree that the Shares have not been
registered under the Securities Act and constitute restricted securities as that
term is defined under Rule 144(a)(3) of the Securities Act and that the Shares
may not be sold, transferred, assigned, pledged or subjected to any lien or
security interest unless they are first registered under the Securities Act and
applicable state securities laws or an exemption from the registration
provisions of the Securities Act and applicable state securities laws are
available with respect to the proposed sale or transfer.
4. Nothing herein shall constitute you as an employee or agent of the
Company; it being acknowledged and agreed by the parties that your performance
of the Services is as an independent contractor. 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.
5. As a consequence of the Services performed by you, 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 agree to keep confidential,
and not to disclose to any other person or entity, or to take or to use for your
own purposes (except as is required in connection with the performance of your
obligations under this Agreement) any Confidential Information, except (a) if
such Confidential Information becomes generally known to the public other than
due to your breach of this paragraph; (b) in connection with the enforcement of
this Agreement; or (c) pursuant to applicable law, regulation or subpoena. Your
obligations pursuant to this paragraph shall survive the termination of this
Agreement and you agree that, due to the importance to the Company of the
Confidential Information, a monetary remedy for a breach or violation of any
provision hereof may be inadequate and may be impracticable and difficult to
prove and such a breach or violation would cause irreparable harm to the
Company. Accordingly, you further 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.
6. You shall be indemnified 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 under this Agreement, 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.
7. 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.
8. This Agreement (a) 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; (b) shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns; and (c) shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without regard to the conflicts of law rules thereof. 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
9. This Agreement may be 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.
By executing below, the parties hereby warrant and represent that they have
the full power and authority to execute and deliver this Agreement and to
perform the obligations as contained herein.
Sincerely,
Tremor Entertainment Inc.
By:/s/ Karen L. Benson
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Karen L. Benson, Chief Financial Officer
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST SET FORTH ABOVE.
/s/ Steve Oshinsky
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Steve Oshinsky