EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") dated as of October 19, 2004
is made by and between Dtomi, Inc., a Nevada corporation (the "Company"), and
Xxxxxx Brazil ("Consultant").
WHEREAS, the Consultant has experience with management and operations
analysis and advice in connection with the acquisition of such technologies;
WHEREAS, the Company desires to retain Consultant to render consulting and
advisory services related to strategic marketing and business planning for the
Company on the terms and conditions set forth in this Agreement, and Consultant
desires to be retained by the Company on such terms and conditions;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Retention of Consultant; Services to be Performed. The Company hereby
retains Consultant to render such consulting and advisory services as set forth
in Exhibit A hereto and as the Company may request from time to time. Consultant
hereby accepts such engagement and agrees to perform such services for the
Company upon the terms and conditions set forth in this Agreement. During the
Term (as defined in Section 2), Consultant shall devote the time, attention,
skill and energy to the business of the Company as may be reasonably required to
perform the services required by this Agreement up to a maximum time commitment
of 60 hours in any calendar month, and shall assume and perform to the best of
his ability such reasonable responsibilities and duties as the Company shall
assign to Consultant from time to time. Consultant shall report to the Chief
Executive Officer of the Company, and Consultant shall not render services for
any other corporation, firm, entity or person that directly competes with the
business of the Company without receiving the prior written consent of the
Company.
Consultant shall perform the services hereunder primarily at the business
premises of the Consultant's office, but he shall, at the Company's expense,
also be required to render the services at such other locations as the Company
may specify from time to time.
2. Term. Unless terminated at an earlier date in accordance with Section
10, this Agreement shall commence as of the date first written above and shall
continue for a continuously for a period of twelve months (the "Term").
3. Compensation. As compensation in full for Consultant's services
hereunder, the Company shall issue the Consultant one million (1,000,000) shares
(the "Shares") of common stock of the Company. The Consultant shall not be
entitled to any additional compensation for services under this Agreement.
Commencing on the date hereof, the Company shall use its best efforts to
promptly register the Shares pursuant to the Securities Act of 1933, as amended,
on Securities and Exchange Commission ("SEC") Form S-8. Consultant hereby
covenants that if he or she is or becomes a director, officer, holder of ten
percent (10%) of the voting securities of the Company, or otherwise becomes an
"affiliate" of the Company (for the purposes of this Agreement, "affiliate"
shall mean an affiliate of, or person affiliated with, a specified person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Company), he or she will not
offer to sell or resell the Common Shares registered on Form S-8, except
pursuant to the provisions of SEC Rule 144, pursuant to a reoffer prospectus in
compliance with Form S-8 or pursuant to such other registration statement
acceptable to the Company in its sole discretion.
4. Expenses. The Company shall not reimburse Consultant for any
out-of-pocket or other expenses that Consultant incurs in performing the
services hereunder.
5. Confidentiality.
(a) Confidential Information. Except as permitted or directed by the Chief
Executive Officer of the Company, during the Term or at any time thereafter
Consultant shall not divulge, furnish or make accessible to anyone or use in any
way (other than in the ordinary course of the business of the Company) or use
for any purpose other than the performance of the services hereunder, any
confidential or secret knowledge or information of the Company that Consultant
has acquired or become acquainted with or will acquire or become acquainted with
during the Term or during engagement by the Company or any affiliated companies
prior to the Term, whether developed by Consultant or by others, concerning any
trade secrets, confidential or secret designs, processes, formulae, products or
future products, plans, devices or material (whether or not patented or
patentable) directly or indirectly useful in any aspect of the business of the
Company, any customer or supplier lists of the Company, any confidential or
secret development or research work of the Company, or any other confidential
information or secret aspects of the business of the Company. Consultant
acknowledges that the above-described knowledge or information constitutes a
unique and valuable asset of the Company acquired at great time and expense by
the Company and its predecessors, and that any disclosure or other use of such
knowledge or information other than for the sole benefit of the Company would be
wrongful and would cause irreparable harm to the Company. Both during and after
the Term, Consultant will refrain from any acts or omissions that would reduce
the value of such knowledge or information to the Company. The foregoing
obligations of confidentiality, however, shall not apply to any knowledge or
information which is now publicly known or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than
as a direct or indirect result of the breach of this Agreement by Consultant.
(b) Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by Consultant which arises out of the performance of the
services hereunder or any related material or information shall be the property
of the Company, and all rights therein are hereby assigned to the Company.
(c) Return of Records. Upon termination of this Agreement, Consultant
shall deliver to the Company all property that is in his possession and that is
the Company's property or relates to the Company's business, including, but not
limited to records, notes, data, memoranda, software, electronic information,
models, equipment, and any copies of the same. Consultant shall permanently
delete all of his electronic data containing such property.
6. Consultant Representations and Warranties. Consultant represents and
warrants to the Company as follows:
(a) Intellectual Property. Consultant has good and marketable title to all
of the inventions, information, material or work product made, created,
conceived, written, invented or provided by Consultant hereunder ("Work
Product"), free and clear of all liens, claims, encumbrances or demands of third
parties, including any claims by any such third parties of any right, title or
interest in or to the Work Product arising out of any trade secret, copyright or
patent;
(b) Compliance with Laws. All services provided hereunder comply with or
will comply with all applicable laws and regulations; and
(c) Competing Activities. Consultant has disclosed to the Company any and
all other obligations, arrangements, agreements or interests of Consultant that
may constitute or give rise to a conflict of interest on the part of Consultant
given the nature and terms of this Agreement, and Consultant is not now under
any obligation of a contractual or other nature to any person, firm, corporation
or other entity which is inconsistent or in conflict with this Agreement, or
which would prevent, limit or impair the execution of this Agreement or the
performance by Consultant of Consultant's obligations hereunder.
7. Injuries.
(a) Injuries to Consultant. Consultant waives any rights to recovery from
the Company for any injuries that Consultant may sustain while performing the
services hereunder and that are a result of Consultant's own negligence.
(b) Injuries to Others. Consultant agrees to take all necessary
precautions to prevent injury to any persons (including the Company's employees)
and damage to property (including the Company's property) that occur as a result
of Consultant providing services under this Agreement.
8. Indemnification.
(a) By Company. Company shall indemnify, defend and hold harmless the
Consultant and its agents and employees from and against all claims, losses,
expenses, fees (including attorneys' and expert witnesses' fees), costs and
judgments (collectively, "Claims") that may be asserted against the Consultant
in connection with the services provided by Consultant under this Agreement.
Consultant shall be entitled to the rights of indemnification provided in this
Section 8 if Consultant is, or is threatened to be made a party to, any action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed proceeding
whether civil, criminal, administrative or investigative action, including any
such action in the right of the Company to procure a judgment in its favor.
Consultant shall be indemnified against expenses, judgments, penalties and
amounts paid in settlement, actually and reasonably incurred by Consultant or on
Consultant's behalf in connection with such proceeding if Consultant acted in
good faith and in a manner Consultant reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
proceeding, having had no reasonable cause to believe Consultant's conduct was
unlawful. Notwithstanding the foregoing, no such indemnification shall be made
in respect of any claim, issue or matter in such proceeding as to which
Consultant shall have been adjudged to be liable to the Company or if applicable
law prohibits such indemnification. In defending the Consultant or indemnifying
the Consultant against any such Claims, the Company shall have the right to
select legal counsel to provide such defense and shall have the right to settle
any such Claims in its sole discretion, provided it satisfies its indemnity
obligations set forth herein. Notwithstanding the foregoing, the Consultant may
engage legal counsel of its choice to represent the Consultant at any time, at
Consultant's sole cost and expense. The Consultant shall have no authority to
settle any Claim indemnified hereunder without the consent of the Company first
being obtained, which consent shall not be unreasonably withheld.
(b) By Consultant. Consultant shall indemnify, defend and hold harmless
the Company and its officers, directors, agents and employees from and against
all Claims that may be asserted against the Company in connection with
Consultant's negligence or misconduct, or acts outside the scope of this
Agreement. Company shall be entitled to the rights of indemnification provided
in this Section 9 if Company is, or is threatened to be made a party to, any
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other actual, threatened or
completed proceeding whether civil, criminal, administrative or investigative
action, including any such action in the right of the Consultant to procure a
judgment in its favor. Company shall be indemnified against expenses, judgments,
penalties and amounts paid in settlement, actually and reasonably incurred by
Company or on Company's behalf in connection with such proceeding if Company
acted in good faith and in a manner Company reasonably believed to be in or not
opposed to the best interests of the Consultant, and, with respect to any
criminal proceeding, having had no reasonable cause to believe Company's conduct
was unlawful. In defending the Company or indemnifying the Company against any
such Claims, the Consultant shall have the right to select legal counsel to
provide such defense and shall have the right to settle any such Claims in its
sole discretion, provided it satisfies its indemnity obligations set forth
herein. Notwithstanding the foregoing, the Company may engage legal counsel of
its choice to represent the Company at any time, at Company's sole cost and
expense. The Company shall have no authority to settle any Claim indemnified
hereunder without the consent of the Consultant first being obtained, which
consent shall not be unreasonably withheld.
9. Independent Parties. In rendering services hereunder, Consultant shall
be acting as an independent contractor and not as an employee or agent of the
Company. As an independent contractor, Consultant shall have no authority,
express or implied, to commit or obligate the Company in any manner whatsoever,
except as specifically authorized from time to time in writing by an authorized
representative of the Company, which authorization may be general or specific.
Nothing contained in this Agreement shall be construed or applied to create a
partnership. Consultant shall be responsible for the payment of all federal,
state or local taxes payable with respect to all amounts paid to Consultant
under this Agreement; provided, however, that if the Company is determined to be
liable for collection and/or remittance of any such taxes, Consultant shall
immediately reimburse the Company for all such payments made by the Company.
10. Termination. Notwithstanding any contrary provision contained
elsewhere in this Agreement, this Agreement and the rights and obligations of
the Company and Consultant hereunder (other than the rights and obligations of
the parties under Sections 5, 6 and 8) shall be terminated immediately upon the
occurrence of any of the following events:
(i) Consultant willfully refuses to comply with or implement reasonable
policies established by the Company; or
(ii) A party is in breach of this Agreement and has failed to cure such
breach within 30 days of the receipt of written notice of breach from the
non-breaching party.
If this Agreement is terminated pursuant to this Section 10, Consultant
shall be entitled to any consulting fee paid to the Consultant through the date
of termination and to reimbursement of any expenses pursuant to Section 4 of
this Agreement, but all other rights to receive consulting fees shall terminate
on such date.
11. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits,
schedules and other documents referred to herein) contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings, agreements or representations,
written or oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby.
(d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns.
(e) Assignment. This Agreement and the rights and obligations of the
parties hereunder shall not be assignable, in whole or in part, by either party
without the prior written consent of the other party.
(f) Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement.
(g) Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
To the Company: Dtomi, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
To: Consultant: Xxxxxx Brazil
00 Xxxxx Xxxx Xx.
Xxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Any party may change the address set forth above by notice to each other party
given as provided herein.
(h) Headings. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(i) Governing Law. All matter relating to the interpretation,
construction, validity and enforcement of this Agreement shall be governed by
the internal laws of the State of Washington, without giving effect to any
choice of law provisions thereof.
(j) Third-Party Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(k) No Waiver. No delay on the part of the Company in exercising any right
hereunder shall operate as a waiver of such right. No waiver, express or
implied, by the Company of any right or any breach by Consultant shall
constitute a waiver of any other right or breach by Consultant.
(l) Jurisdiction and Venue. THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL
COURT OR STATE COURT SITTING IN KING COUNTY, WASHINGTON, AND EACH PARTY CONSENTS
TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT
VENUE IN SUCH FORUM IS NOT CONVENIENT. IF ANY PARTY COMMENCES ANY ACTION UNDER
ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP
CREATED BY THIS AGREEMENT IN ANOTHER JURISDICTION OR VENUE, ANY OTHER PARTY TO
THIS AGREEMENT SHALL HAVE THE OPTION OF TRANSFERRING THE CASE TO THE
ABOVE-DESCRIBED VENUE OR JURISDICTION OR, IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
(m) Arbitration. Any claim or dispute of any nature between the parties
hereto arising directly or indirectly from the relationship created by this
Agreement shall be resolved exclusively by arbitration in Seattle, Washington,
in accordance with the applicable rules of the American Arbitration Association.
The fees of the arbitrator(s) and other costs incurred by the parties in
connection with such arbitration shall be paid by the party which is
unsuccessful in such arbitration. The decision of the arbitrator(s) shall be
final and binding upon both parties. Judgment of the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. In the
event of submission of any dispute to arbitration, each party shall, not later
than 30 days prior to the date set for hearing, provide to the other party and
to the arbitrator(s) a copy of all exhibits upon which the party intends to rely
at the hearing and a list of all persons each party intends to call at the
hearing.
(n) Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(o) Remedies. The parties agree that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any party
may, in its discretion, apply to any court of law or equity of competent
jurisdiction for specific performance and injunctive relief in order to enforce
or prevent any violations this Agreement, and any party against whom such
proceeding is brought hereby waives the claim or defense that such party has an
adequate remedy at law and agrees not to raise the defense that the other party
has an adequate remedy at law.
(p) Negative Covenant. Consultant shall not provided his consulting and
advisory services in connection with the offer or sale of securities in a
capital-raising transaction and will not, directly or indirectly, promote or
maintain a market in the Company's securities.
(q) Advice of Counsel. Each party acknowledges that it has been advised by
counsel in the negotiation, execution and delivery of this agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph.
The Company: DTOMI, INC.
By: ________________________________
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
The Consultant: By: ________________________________
Xxxxxx Brazil
EXHIBIT A
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DESCRIPTION OF CONSULTING SERVICES:
A. to provide management and operations analysis for the Company;
B. to provide general consulting services to the Company in connection with the
acquisition of new technologies ;
C. to assist the Company in the performance of due diligence related to
potential acquisitions of new technologies; and
D. to provide general consulting services on such matters as may be requested by
the Board of Directors of the Company.
The Company: DTOMI, INC.
By: ________________________________
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
The Consultant: By: ________________________________
Xxxxxx Brazil
