Exhibit 4(a) Consulting Agreement dated as of
February 1, 2001, by and between
TradinGear.com, Inc. and Kim Hemphill
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made as of the 1st day of February, 2001, by and
between TradinGear.com, Inc., a New York corporation, ("Company"), with its
principal offices located at 39 Broadway, Suite 740, New York, New York 10006
and Kim Hemphill, located at 16006 East Jacobs Road, Spokane, Washington 99217
("Consultant").
W I T N E S E T H:
BACKGROUND. Consultant is expert in business consulting, including the
development and implementation of a business plan and the Company is
desirous of obtaining the services of Consultant and Consultant is willing to
consult with the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto intending to be legally bound
hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) "Agreement" means this Consulting Agreement, as the same may, from
time to time, be amended in accordance with the provisions hereof.
(b) "Cause" means, with respect to the Consultant, any:
(i) Act of dishonesty;
(ii) Act of malfeasance;
(iii) Action taken in knowing contradiction to the best
interests of the Company;
(iv) Commission of a "Prohibited Act" as defined herein;
(v) Refusal to perform job functions reasonably required of
the Consultant under this Agreement; or
(vi) Any other act which has a direct, substantial and
adverse effect on the Company's reputation or business.
(c) "Company" means and includes TradinGear.com, Inc. and all of its
subsidiaries and the respective successors and assigns of the Company and such
subsidiaries, whether now or hereafter existing.
(d) "Competing Organization" means any person or legal entity engaged
in, about to engage in, or intending to engage in, research, or development,
of computer software for use in the securities industry.
(e) "Customer" means any individual, firm, partnership, corporation,
company, joint venture or governmental or military unit or any other entity or
any parent, subsidiary or affiliate of any of them which deals in, or is
negotiating or has a contract with the Company for the purchase of, any of the
Company's products or services.
(g) "Secret or Confidential Information" means any unpublished ideas or
any compilations of information kept confidential by the Company in the
operation of its business and which gives or can give to the Company an
advantage over its competitors, including, by way of illustration but not
limitation: programming, software development, agreements, memoranda, cost and
financial data, procedures, customer lists, marketing plans and business
forecasts.
(h) "Prohibited Act" means participating in any capital-raising
transaction on behalf of the Company, or directly or indirectly promoting or
maintaining a market for the Company's securities.
(i) "Term" means the two (2) year period beginning on the date hereof.
2. Engagement of Consultant. The Company hereby appoints and engages
Consultant as a consultant and advisor with respect to the matters, and for
the activities, specified in Paragraph 3 hereof, for the Term set forth in
Paragraph l(i) above and for the compensation payable as set forth in
Paragraph 7 hereof. Consultant hereby accepts the aforesaid appointment and
engagement in consideration of the aforesaid compensation. Company may
terminate the engagement of Consultant at any time for Cause as defined
herein.
3. Scope of Services. Consultant agrees that, throughout the Term, he shall
provide such consulting services and advice pertaining to the development and
implementation of the Company's business plan, as and when the Company may
from time to time reasonably request.
4. Modification and Cancellation of Services. The Company may at any time
modify the scope of the services specified in a Work Assignment by giving
written notice to Consultant specifying the desired modifications.
Modification of services hereunder shall include any change in the scope of
services, including expansion or contraction of the services. However, under
no circumstances shall the Company require the Consultant to perform any
Prohibited Act, as defined herein.
5. Compensation. As compensation for the services to be rendered as
set forth herein, the Company shall pay to the Consultant the sum of Eighty-
Seven Thousand, Nine Hundred and Fifty ($87,950) Dollars per fiscal year,
which payment shall be made by the Company issuing to the Consultant, in each
fiscal year, a stock certificate for 250,000 shares of its common stock (the
"Shares") valued at $0.3518 per share. Within Sixty (60) days after it first
becomes eligible to do so, the Company shall file a registration statement
registering the Shares for sale with the U.S. Securities and Exchange
Commission pursuant to a registration statement on Form S-8 or similar form.
The Consultant understands that the Shares will not be registered under the
Securities Act until the Company files the Registration Statement. In such
event and until the Company files the Registration Statement, the Consultant
represents that the Shares are being acquired by him for investment for his
own account and not with a view to the sale or other distribution thereof.
Consultant will sign and deliver to the Company the letter attached as Exhibit
1 at the time of the issuance of the Shares. The certificate or certificates
for the Shares shall bear the following legend, unless and until those shares
have been registered for sale on public markets as required by applicable law:
"The securities represented by this-certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and may not be
sold, pledged, hypothecated, donated, or otherwise transferred, whether or
not for consideration, unless either the shares have been registered under
said Act or an exemption from such registration requirement is available.
If the shares are to be sold or transferred pursuant to an exemption from
the registration requirements, the Company may require a written opinion of
counsel, satisfactory to counsel for the Company, to the effect that
registration is not required and that such transfer will not violate the Act
or applicable state securities law."
6. Expenses. During the Term, the Consultant shall bear all of its own
expenses, and all of the expenses of any employee, independent contractor,
subcontractor, consultant, agent or representative engaged by the Consultant.
7. Independent Contractor. Consultant and or any person retained by Consultant
to assist him shall, at all times, be an independent contractor hereunder, and
not a co-venturer, agent, employee or representative of the Company.
Consultant is fully responsible for the direction, completion and supervision
of any services performed, but shall consult at least weekly with the Company
regarding the status of Work Assignments, including any problems which could
result in a change in the capability or marketability of the Company's
products and services. Except as might hereinafter be expressly agreed, the
Consultant shall not have the authority to obligate or commit the Company in
any manner whatsoever other than herein defined.
8. Non-Solicitation. The parties to this Agreement agree that neither shall
directly or indirectly solicit for employment, employ or otherwise retain
staff of the other during the Term and for a period of twelve (12) months
after termination of this Agreement unless mutually agreed to by both parties.
9. Confidentiality. Consultant will not disclose any Secret or Confidential
Information to any other person or legal entity. The provisions of this
Paragraph 9 shall survive the termination of this Agreement.
10. Non-Competition. Consultant agrees that for a period of one (1) year from
the date of the termination of this Agreement, he will not without the written
approval of the Company, directly or indirectly, under any circumstances
whatsoever, own, manage, operate, engage in, control or participate in the
ownership, management, operation or control of, or be connected in any manner,
whether as an individual, partner, stockholder, director, officer, principal,
agent, employee or consultant, or in any other relation or capacity
whatsoever, with any Competing Organization, and will not in any such manner,
compete with the Company or solicit or call on any Customer of the Company,
wherever located.
11. Property and Proprietary Rights. The tangible products and work product
resulting from Consultant's services to the Company pursuant to this Agreement
are hereby assigned and shall belong exclusively to the Company. The Company
shall have the exclusive right to obtain patents, copyrights, registrations
and such other proprietary protection as it wishes. Consultant acknowledges
and agrees that all of Consultant's designs, writings or works of authorship,
and any documents produced, resulting from Consultant's services to the
Company developed or authored by Consultant during the terms of this
Agreement, are "works-for-hire" and the property of the Company, including,
without limitation, any copyrights pertaining thereto. In the event it is
determined that any such writings or works of authorship are not
"works-for-hire", Consultant hereby assigns to the Company all Consultant's
right, title and interest, including all rights of copyright, in such writings
or works of authorship to the Company. Consultant agrees to cooperate with the
Company in perfecting any such assignment of rights. In addition, Consultant
will and hereby does assign to the Company Consultant's entire right, title
and interest in any invention, patentable or not, made or conceived solely or
jointly by Consultant during the course of developing and producing software
for the Company. In connection with any such invention, Consultant will
disclose it promptly to the Company and Consultant will, on request, promptly
execute a specific assignment of title to the Company, including without
limitation any rights of patent or trade secret, and do anything else
reasonably necessary to enable the Company to secure patent or trade secret
protection in the United States or foreign countries. Pre-existing products or
products outside the terms of this agreement will remain the property of the
Consultant.
12. Supplied Information. Any data or other materials furnished by the Company
to the Consultant in connection with the Consultant's services under this
Agreement shall remain the sole property of the Company and will be treated as
Confidential information. Within thirty (30) days of termination of this
Agreement and upon receipt by Consultant of payment for services performed
hereunder, Consultant shall return to the Company all data and other materials
furnished to him or his staff by the Company.
13. Severability. The provisions of this Agreement shall be severable, and if
any part of any provision shall be held invalid or unenforceable, or any
separate covenant contained in any provision is held to be unduly restrictive
and void by a final decision of any court or other tribunal of competent
jurisdiction, such part, covenant or provision shall be construed or limited
in scope to give it maximum lawful validity and the remaining provisions of
this Agreement shall nonetheless remain in full force and effect.
14. Entire Agreement. This Agreement contains the entire agreement of the
parties relative to the subject matter hereof, superseding and terminating all
prior agreements or understandings, whether oral or written, between the
parties hereto relative to the subject matter hereof, and this Agreement may
not be extended, amended, modified or supplemented without the prior written
consent of the parties hereto.
15. Waivers. Any waiver of the performance of the terms or provisions of this
Agreement shall be effective only if in writing and signed by the party
against whom such waiver is to be enforced. The failure of either party to
exercise any of his or its rights under this Agreement or to require the
performance of any term or provision of this Agreement, or the waiver by
either party of any breach of this Agreement, shall not prevent a subsequent
exercise or enforcement of such rights or be deemed a waiver of any subsequent
breach of the same or any other term or provision of this Agreement.
16. Notices. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed given when personally delivered or
sent by registered or certified mail, postage prepaid, return receipt
requested, to the respective addresses of the parties hereto as set forth
above or to such other address as either party may designate by notice to the
other party given as herein provided.
17. Assignment. This Agreement shall inure to the benefit of and shall be
binding upon the successors, heirs and legal representatives of each of the
parties. The Company may assign this Agreement to any other entity within the
Company or to any successor in interest only with the prior written consent of
the Consultant.
18. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York.
19. Choice of Forum and Limitations. Any action to resolve any dispute under
this Agreement may be brought only in a court of competent jurisdiction in the
State of New York. No action arising from a dispute based on this Agreement
may be brought more than one (1) year after the cause of action has accrued.
20. Termination. Except as otherwise provided herein, upon the occurrence of
any breach of this Agreement by the Company or Consultant which remains
uncured for a period of thirty (30) days following written notice of the
breach, the other party has the right to terminate this Agreement. In the
event of a termination of this agreement by the Company pursuant to this
Paragraph 20, the Company shall have the right, in addition to all of its
other rights, to require Consultant to deliver to the Company all of
Consultant's work in progress being developed by Consultant pursuant to this
Agreement. Consultant agrees to continue to be bound by all obligations
described in Paragraphs 9, 10 and 11 hereof during the Term and after the
termination of this Agreement, provided that all amounts due to Consultant
through the time of termination have been paid in full.
21. Pre-Agreement Applicability. Consultant acknowledges and agrees that the
terms of this Agreement are applicable to all information and materials
developed for, or any advice provided to, the Company prior to the signing of
this Agreement.
22. Force Majeure. Neither party shall be deemed in default of this Agreement
to the extent that performance of their obligations or attempts to cure any
breach are delayed or prevented by reason of any act of God, fire, natural
disaster, accident, act of government, shortages of material or supplies or
any other cause beyond the control of such party ("Force Majeure") , provided
that such party gives the other party written notice thereof promptly and, in
any event, within 10 days of discovery thereof and uses its good faith efforts
to cure the breach. In the event of such a Force Majeure, the time for
performance or cure shall be extended for a period equal to the duration of
the Force Majeure but not in excess of two (2) months.
23. Counterparts. This Agreement and any amendment or modification hereof may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
24. Facsimile Signatures. A copy of this Agreement bearing a facsimile
signature shall be deemed to bear an original signature in all states which
may have jurisdiction over this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
TRADINGEAR.COM, INC.
BY:/s/ Sam Gaer
------------
Sam Gaer, President
CONSULTANT
BY:/s/ Kim Hemphill
----------------
Kim Hemphill
EXHIBIT 1
February 1, 2001
TradinGear.com, Inc.
39 Broadway, Suite 740
New York, New York 10006
Re: TradinGear.com, Inc., Common Stock
Gentlemen:
The undersigned person who is acquiring shares of the Common Stock of
TradinGear.com, Inc. (the "Company") hereby acknowledges, represents, warrants
and covenants as follows:
1. The shares being acquired have not been registered under the
Securities Act of 1933, as amended (the "Act") and are not freely tradeable.
The shares must be held indefinitely, unless either a Registration Statement
with respect to the shares is filed and declared effective under the Act or an
exemption from the registration requirements of the Act is available.
2. Except for an agreement between the undersigned and the Company
dated February 1, 2001 the Company has no obligation to register any or all of
the shares under the Act for distribution or sale. The Company has not agreed
with anyone to comply with Regulation A or any other exemption under the Act
respecting the resale or other transfer of the shares.
3. The shares are being acquired for investment purposes only for the
undersigned's own account and not with a view to sale or resale, distribution
(as that term is defined in the Act), or transfer, or to offers in connection
therewith. When the shares have been issued to the undersigned, no other
person will have a beneficial interest in the shares.
4. The Company will affix a legend in substantially the following
form to the certificates evidencing the shares:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and may not be sold, pledged, hypothecated, donated, or otherwise
transferred, whether or not for consideration, unless either the
shares have been registered under said Act or an exemption from such
registration requirement is available. If the shares are to be sold
or transferred pursuant to an exemption from the registration
requirements, the Company may require a written opinion of counsel,
satisfactory to counsel for the Company, to the effect that
registration is not required and that such transfer will not violate
the Act or applicable state securities law.
5. Prior to any proposed sale, pledge, hypothecation, gift or other
transfer, for value or otherwise, of any or all of the shares or of any
interest therein (hereinafter, a "transfer"), the undersigned shall give
written notice to the Company describing the transfer, unless the shares
have first been registered under the Act. The undersigned shall not affect
any transfer unless and until (a) the Company receives an opinion of the
undersigned's counsel that the shares have been registered under the Act, or
in form and substance acceptable to counsel for the Company, that the
transfer may be affected without registration under the Act, and without
registration or qualification under applicable state securities registration
or qualification under applicable state securities laws, and (b)
satisfaction of such other conditions as may be required by counsel to the
company in order to assure compliance with the Act and with applicable state
securities laws.
Very truly yours,
/s/ Kim Hemphill
Kim Hemphill