Exhibit 4a
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of October
23, 2002, between TerenceNet, Inc., a Nevada
corporation (the "Company"), and Xxxxx Xxx ("Day"), an
individual.
WITNESSETH:
WHEREAS, Company desires to retain Day to consult and
advise the Company, and Day is willing to provide such
services:
NOW, THEREFORE, in consideration of the mutual
undertakings contained herein, the parties agree as
follows:
Arrangement. The Company hereby engages Day as a
director to render services to the Company as
hereinafter provided and Day hereby accepts such
engagement for a period commencing on October 23, 2002
and ending on the October 23, 2005. Day agrees that
Day will not have any authority to bind or act on
behalf of the Company, except as expressly provided
the Board in the Articles and Bylaws of the
Corporation. The Company hereby acknowledges and
agrees that Day may engage directly or indirectly in
other businesses and ventures and shall not be
required to perform any services under this Agreement
when, or for such periods in which, the rendering of
such services shall unduly interfere with such other
businesses and ventures, providing that such
undertakings do not completely preempt Day's
availability during the term of this Agreement.
Neither Day nor his employees will be considered by
reason of the provisions of this Agreement or
otherwise as being an employee of the Company or as
being entitled to participate in any health insurance,
medical, pension, or bonus plans sponsored by the
Company for its employees. Day shall report all
earnings under this Agreement in the manner
appropriate to its status as a Director and shall file
all necessary reports and pay all taxes with respect
to such payments.
Services
1. Subject to the terms and conditions of this
Agreement, the Company hereby engages the Day, and Day
hereby accepts the engagement, to provide advice,
analysis and recommendations (the "Services") to the
Company with respect to any and all issues EXCEPT
services expressly prohibited under the terms of this
Agreement which include:
. Reorganizations, mergers, divestitures,
and due diligence studies;
. Capital sources and the formation of
financial transactions;
. Banking methods and systems;
. Guidance and assistance in available
alternatives to maximize shareholder value;
. Periodic preparation and distribution of
research reports and information to the
broker/dealer and investment banking
community;
. Press Release preparation and
distribution.
During the term of this Agreement, Day shall render
such services as the Company from time to time
reasonably requests, which services shall include but
not be limited to those rendered by Day to Company
prior to the date hereof; provided that to the extent
practicable such services shall be furnished only at
such time and places as are mutually satisfactory to
the Company and Day.
Duties of Company
1. Subject to the terms and conditions of this
Agreement , Company shall take all actions necessary
to obtain and maintain a qualification for quotation
or listing on the over the counter bulletin board,
including:
2. Timely filing of all required SEC reports,
including all required financial information
3. Compliance with all existing and any proposed or
new qualification or listing requirements on the over
the counter bulletin board, including but not limited
to those proposed requirements as set forth on
Schedule A.
4. Company shall not enter into any binding
commitments, obligations or agreements without prior
notice and opportunity to review given to Day.
5. Company shall promptly furnish to Day upon
request any requested information, written or oral,
concerning the business and affairs of the Company.
6. Company shall not issue any additional shares of
common stock or options for or securities convertible
into common stock, or undertake any forward or reverse
split of its common stock, or undertake any other
action requiring stockholder approval as set forth in
Schedule A, without the prior written approval of Day,
which shall not be unreasonably withheld upon Company
furnishing adequate and sufficient justification for
such proposed action.
7. Company shall promptly comply with all reasonable
requests of Day under this Agreement.
8. Notwithstanding the provisions of this agreement,
any failure of Company to fully and completely comply
with all Company's duties hereunder shall give Day the
right to immediately and without notice terminate this
Agreement and retain all shares issued to Day
hereunder, which shall be deemed fully earned by Day
in the event of such termination. All of Company's
agreements, representations, warranties, duties and
obligations under this Agreement shall survive any
such termination.
9. Time is of the essence for Company in this
provision concerning Company's Duties.
2. Compensation and Expenses. For the Services
provided by Day in the first year of this agreement,
the Company (i) shall compensate Day by delivering to
the Day, not later than October 23, 2002, one hundred
thousand (100,000) shares of the common stock of the
Company ("Common Stock") that is Freely Tradeable (as
hereinafter defined) and an option representing one
hundred thousand (100,000) shares of the common stock
of the Company ("Common Stock") that is Freely
Tradeable (as hereinafter defined). "Freely Tradeable"
means shares that may be sold at any time by the Day
free of any contractual or other restriction on
transfer and which have been appropriately listed or
registered for such sale on all securities markets on
any shares of the Common Stock are currently so listed
or registered; and (ii) the Company shall be
responsible for the payment of the reasonable out-of-
pocket costs and expenses of Day incurred prior to, or
on or after the date of this Agreement, in connection
with its engagement under this Agreement, including,
but not limited to, reasonable fees and disbursements
of counsel for Day, travel and related expenses,
document production and computer database charges.
The Company shall reimburse Day for such costs and
expenses as they are incurred, promptly after receipt
of a request for reimbursement from Day. Compensation
for Years two and three of this agreement will be
determined by the Compensation Committee of the
Company's Board of Directors.
3. Successors and Assigns. This Agreement is binding
upon and inures to the benefit of the Company and its
affiliates, successors and assigns and is binding upon
and inures to the benefit of Day and his successors
and assigns; provided that in no event shall Day's
obligations to perform the Services be delegated or
transferred by Day without the prior written consent
of the Company.
4. Term. This Agreement shall commence on the date
hereof and, unless sooner terminated in accordance
with the provisions of Section 5 hereof, shall expire
on October 23, 2005. However, the Agreement may be
extended by mutual written consent.
5. Termination. Either the Company or Day may
terminate this Agreement for material breach upon at
least thirty (30) days prior written notice specifying
the nature of the breach, if such breach has not been
substantially cured within the thirty (30) day period.
6. Indemnification. Company shall indemnify and hold
harmless Day from and against any and all losses,
damages, liabilities, reasonable attorney's fees,
court costs and expenses resulting or arising from any
third-party claims, actions, proceedings,
investigations, or litigation relating to or arising
from or in connection with this Agreement, or any act
or omission by Company.
7. Notice. For the purpose of this Agreement, notices
and all other communications provided for herein shall
be in writing and shall be deemed to have been duly
given (i) when delivered, if personally delivered,
(ii) when sent by facsimile transmission, when receipt
therefor has been duly received, or (iii) when mailed
by United States registered mail, return receipt
requested, postage prepaid, or by recognized overnight
courier, addressed set forth in the preamble to this
Agreement or to such other address as any party may
have furnished to the other in any writing in
accordance herewith, except that notices of change of
address shall be effective only upon receipt.
8. Miscellaneous. No provisions of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing
signed by authorized officers of each party. No waiver
by either party hereto of, or compliance with, any
condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter
hereof have been made by either party which are not
set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this
Agreement shall be governed by the internal laws of
the State of Nevada. Any controversy arising under or
in relation to this Agreement shall be settled by
binding arbitration in Las Vegas, Nevada in accordance
with the laws of the State of Nevada and the rules of
the American Arbitration Association.
9. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to
be an original but all of which together will
constitute one and the same instrument.
10. Severability. If in any jurisdiction, any
provision of this Agreement or its application to any
party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such
jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability,
without invalidating the remaining provisions hereof
and without affecting the validity or enforceability
of such provision in any other jurisdiction or its
application to other parties or circumstances. In
addition, if any one or more of the provisions
contained in this Agreement shall for any reason in
any jurisdiction be held to be excessively broad as to
time, duration, geographical scope, activity or
subject, it shall be construed, by limiting and
reduction it, so as to be enforceable to the extent
compatible with the applicable law of such
jurisdiction as it shall then appear.
IN WITNESS WHEREOF, this Consulting Agreement has been
executed by the Company and Day as of the date first
written above.
Signature of Contractor
Name: Xxxxx Xxx
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, 00000
Signature: _______________________________
Signature of Company
Name: TerenceNet, Inc.
Address: 000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, 00000
Signature: _______________________________
