Exhibit 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement"') is entered into this 21th day
of August 2003 by and between Dtomi, Inc., a Nevada Corporation (the "Company")
and the Xxxxx Xxxxxxx ("Consultant").
RECITALS
A. Consultant, through the expenditure of considerable money, time
and effort, has created developed, and is continuing to improve,
an efficient system for providing management consulting and
financial services (the "Services") to private companies.
B. The Company desires to obtain the assistance of Consultant, and
Consultant is willing to provide such assistance, with respect to
the Services.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained: herein, the sufficiency of which is hereby acknowledged by each of
the parties, the Company and Consultant hereby agrees as follows:
1.Appointment as Consultant; Scope of Services. The Company hereby
engages Consultant as a consultant in connection with the Services.
Consultant hereby agrees to perform such consulting services upon the
terms and conditions hereinafter set forth.
2. Term. This Agreement shall be for a period of Five (5) years
commencing as of the date of this Agreement and shall be extended on
each anniversary of this agreement for one additional year unless
otherwise terminated in writing by either the Company or the
Consultant. Notwithstanding the above, sections 9, 11, 12, 14 and 15
hereof shal1 survive termination of this Agreement.
3. Services of Consultant.
(a) Consultant agrees that during the term of this Agreement,
unless this Agreement is sooner terminated pursuant to its
terms, Consultant shall perform the Services including
more specifically those services described in Schedule "A"
attached hereto and incorporated herein by reference
(collectively, the "Services"'). The parties agree that
the general terms and conditions of this Agreement, which
will be controlling, will govern the work performed by
Consultant.
(b) The Services performed by Consultant may be performed at
days, times and in the order or sequence, as Consultant
deems desirable.
(c) Consultant shall provide the personnel and administrative
services necessary to provide the Services.
4. Compensation. Compensation shall be for management consulting
services, identifying potential customers for both Dtomi
Enterprise and the Spring Axle divisions, assisting in writing
business plans and projections, identifying acquisition candidates
and identifying potential board of directors candidates. As
compensation for management consulting services, the Company shall
pay the Consultant 500,000 Shares of the Common Stock of Dtomi,
Inc. (OTCBB: DTOI).
5. Expenses. Consultant shall be responsible for any and all of its
expenses incurred in connection with the performance of the
Services unless expenses are otherwise pre-authorized by the
Company.
6. Relationship of the Parties. Consultant under this Agreement is
and shall act as an independent contractor and not as an agent,
servant, or employee of the Company. Nothing in this Agreement
shall be construed to imply that the Consultant or its agents or
employees are officers or employees of the Company. Consultant
shall assume full responsibi1ity to and for all of its agents and
employees any federal, state, or local laws or regulations
regarding employees' liability, worker's compensation,
unemployment insurance, income tax withholding, and authorization
for employment, as well as any other acts, laws, or regulations
of similar import. Consultant hereby acknowledge and agrees that
it shall have no authority to enter into any contract or
agreement or to bind the Company except as specifically provided
herein and that in connection with the performance of the
Services it shall have no authority to make any representations
of any kind with respect to or on behalf of the Company. It is
understood that independent contractor status is a condition
required by the Consultant to its agreement to perform the
Services specified to performed by, the Consultant under this
Agreement.
7. Personal Services. Consultant shall be personally responsible for
the performance f the Services described herein, and shall be
responsible for any persons employed by Consultant to assist
consultant in the performance of such Service.
8. Non-Exclusive Services. During the term of this Agreement.
Consultant may perform and may permit any of its employees,
principals, or affiliates to perform consulting services; similar
to the Services provided for herein in its sole and absolute
discretion.
9. Non-Disclosure Covenant.
(a) Consultant covenants and agrees that it will not, at any
time during the term of this Agreement, or at any time
thereafter, communicate or disclose to any person, or use
for its own account or for the account of any other
person, without the prior written consent of the Company,
any trade secret or confidential knowledge or information
concerning the business and affairs of the Company or any
of their affiliates acquired by Consultant during the term
of this Agreement. The same shall not be used by
Consultant in any way other than in performance of its
services under this Agreement and shall be returned to the
Company promptly at the termination of the work performed
pursuant to this Agreement by Consultant. Consultant will
not deliver, reproduce, or in any way allow such
information or documents; to be delivered by it or any
person or entity outside, the Company without duly
authorized specific direction or consent of the Company.
Consultant further covenants and agrees that, during the
term of this Agreement and therefore certain all-such
confidential knowledge and information concerning the
foregoing, in trust, for the sole benefit of the Company
and its affiliates and their respective successors and
assigns. Consultant shall ensure the compliance of al1 of
its employees and agents with the provisions of this
covenant. This Section 9 shall survive the termination of
this Agreement.
(b) Company covenants and agrees that it will not, at any time
during the term of this Agreement, or at any time
thereafter, communicate or disclosure to any person, or
use for its own account or for the account of any other
person, without the prior written consent of the
Consultant, any confidential knowledge or information
concerning any trade secret or confidential information
concerning the business and affairs of the Consultant or
any of its affiliates acquired by the Company during the
term of this Agreement. The same shall not be used by the
Company in any way other than pursuant to the terms of
this Agreement. The Company will not deliver, reproduce,
or in any way allow such information or documents to be
delivered by it or any person or entity outside the
Company without duly authorized specific direction or
consent of the Consultant. The Company further covenants
and agrees that, during the term of the Agreement and
thereafter, it will retain all such confidential knowledge
and Information concerning the foregoing, in trust, for
the sole benefit of the Consultant and its affiliates and
their respective successors and assigns. The Company shall
ensure the compliance of all of us employees and agents
with the provisions of this covenant. This Section shall
survive the termination of this Agreement.
10. Obligations of the Company. The Company hereby agrees to
facilitate the performance of the Services by the Consultant and
to provide Consultant with access to all information and personnel
reasonably requested by Consultant relating to the Services.
11. Indemnification by the Consultant to the Company
(a) Consultant agrees to indemnify and to save and hold
harmless the Company, its agents and employees from and
against any and all claims, losses, liabilities, damages,
costs, and expenses, including without limitation
attorneys fees, to which the Company may be subject under
any applicable act, role, regulation, statute or at common
law or otherwise, and will reimburse the Company and such
other persons for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending action, whether or not resulting in any
liabilities insofar as such losses; c1aims, damages,
liabilities, or expenses arise out of are based on any (i)
breach or inaccuracy of any representation, warranty, or
covenant of Consultant contained herein. (ii)
misrepresentation or fraud made as a result of or in
connection with consultant's performance of the Services
hereunder; or (iii) any action by the Consultant in
conr.4ection with the Consultant's performance of the
Services hereunder related to any violation of applicable
law or regulation.
(b) Promptly after receipt by Consultant under Subsections 11
(a) or 11 (b) hereof notice of the commencement of any
action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying
party under any such Subsections, notify the indemnifying
party in writing of the commencement. Any failure to so
notify the indemnifying party shall relieve the
indemnifying party of liability.
12 Indemnification by the Company to the Consultant
(a) Company agrees to indemnify and to save and hold harmless
Consultant, its agents and employees from and against any
and al1 claims, losses, liabilities, damages, costs, and
expenses, including without limitation attorneys fees, to
which the Consultant may be subject under any applicable
act, rule, regulation, statute or at common law or
otherwise, and will reimburse the Consultant and such
other person for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending actions, whether or not resulting in any
liability insofar as such losses, claims, damages,
liabilities, or expenses arise out of or are based on any
(i) breach or inaccuracy of any representation, warranty,
or covenant of the Com any contained herein; or (ii) any
misrepresentations or any untrue statements of a material
fact contained in any offering materials or the omission
therefrom of a material fact required to be the stated
therein or necessary to make the statement therein not
misleading.
(b) Promptly after receipt by Consultant under Subsections 12(a) or 12(b) hereof
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under any
such Subsections, notify party writing of the commencement of such action within
30 days of such commencement. Any failure to so notify indemnifying party shall
relieve the indemnifying party of labi1ity.
13. Intellectual Property. Consultant acknowledges that the Company's
trademarks, trade names and emblems are the property of the
Company and that it is expressly understood that no licensed use
of intellectual property is granted herein to Consultant. It is
further understood that any use of Consultant of any such
intellectua1 property shall be in the name of Company. Upon
termination of this agreement, Consultant shall immediately and
permanently is continue and cease and desist from engaging in any
activity, which would tend to indicate that Consultant is
affiliated with anyone who is authorized to uti1ize the
intellectual property.
14. Representations, Warranties and Covenants of Consultant.
Consultant hereby represents and warrants that the Consultant has
the requisite power and authority to enter into this agreement and
to carry out its obligations hereunder. The execution and de1ivery
of this agreement by consultant of the consummation by Consultant
of the transactions contemplated hereby have been duly authorized
by Consultant, and no other action on the part of Consultant is
necessary to authorize this agreement in such transactions. This
agreement has been duly executed and delivered by Consultant and
constitutes a valid and binding obligation of Consu1tant,
enforceab1e in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to the enforcement
of creditors' rights generally by general principles of equity.
15. Representations and Warranties of the Company. The Company hereby
represents an warrants as of the date hereof each of the
following:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State
of Florida, with all requisite corporate power and
authority to carry on its business now conducted and own
and operate the assets and properties now owned and
operated by it. The Company is duly qualified to do
business and is in good standing in Florida and in each
jurisdiction in which it is required to be qualified and
in which the failure to be so qualified could have a
material adverse effect on the business of operations of
the Company.
(b) The company has the requisite corporate power and
authority to enter into this Agreement and to carry out
its obligations hereunder. The execution and delivery or
this agreement by the Company and the consummation by the
Company of the transactions contemplated hereby have been
duly authorized by the Company, and no other corporate
proceedings on the part of the Company are necessary to
authorize this agreement in such transactions. This
agreement has been duly executed and delivered by the
Company and constitutes a va1id and binding obligation of
the Company enforceable in accordance with its terms,
except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar
laws relating to the enforcement of creditors' rights
general1y by general principles of equity.
16. Notices. Any notice of communication to be given under the terms
of this Agreement shall be in writing and delivered in person or
deposited, certified or registered in the United States mail,
postage prepaid, addressed as fol1ows:
If to Consultant: Xxxxx Xxxxxxx
X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxx
If to Company: Dtomi, Inc
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxx Xxxx, Chairman
17. Severability. In the event that any provision in this Agreement is
he1d to be invalid, void, or illegal by any court of competent
jurisdiction, then the court making such determination may reduce
the obligations so as to be enforceable according to applicable
law and enforce such obligations as reduced. The remaining
provisions of this agreement shall be enforced according to their
terms.
18. Modification and Amendments. This Agreement shall not be altered
or amended, expect by writing, signed by all the parties hereto,
or such parties authorized agents.
19. Entire Agreement. This agreement constitutes and embodies the full
and complete understanding and agreement of the parties hereto
with respect to the subject matt hereof and supersedes all prior
understanding: or agreements whether oral or in writing. .
20. Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the State of Florida, without
regard to the conflict of laws principles thereof.
21. Attorney's Fees. If any arbitration, litigation, action, suit, or
other proceeding is instituted to remedy, prevent or obtain relief
from a breach of this Agreement, in relation to a breach of this
Agreement or pertaining to a declaration of rights under this
Agreement, the prevailing party will recover all such party's
attorneys fees incurred in each and every such action, suit or
other proceeding, including any and all appeals or petitions there
from. As used in this Agreement, attorneys' fees will be deemed to
be the full and actual cost of any legal services actually
performed in connection with the matters involved, including those
re1ated to any appeal or the enforcement of any judgment on the
basis of the usual fee charged by attorneys performing such
services.
22. Arbitration Clause. The American Arbitration Association in
Sarasota, Florida shall arbitrate any and all disputes arising
from this Agreement under the law of the State f Florida. The
results of any such arbitration shall be binding on all Parties an
their affiliates or agents.
23. Headings. The paragraph headings used herein arc for convenience
and reference only and are not intended to define, limit or
describe the scope or intent of any provision of this Agreement.
22. No Waiver By Failure To Act. Neither any failure nor any delay on
the part of either party hereto in exercising any right hereunder
shall operate as a waiver thereof; nor all any single or partial
exercise of any right hereunder preclude any other or further any
exercise thereof or the exercise of any other right.
23. Assignment. This agreement shall inure to the benefit of, and
shall be binding upon, the successors and assigns of the parties
hereto; provided however, that Consultant shall not assign any
right herein or delegate any duties without the prior written
consent of the Company.
24. No Partnership: Third Person. It is not intended by this Agreement
to, and nothing contained in this Agreement shall, create any
partnership, joint venture or other arrangement between Consultant
and the Company. No term or provision of this Agreement is
intended to, or shall be for the benefit of any person, firm,
corporation or other entity not a party hereto and no such party
shal1 have an. right or cause of action hereunder.
IN WITNESS WHEREOF, this Consulting Agreement has been executed as of the day
and year first written above.
Dtomi. Inc. a Nevada. Corporation
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx
Its: Chairman of the Board
Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
SCHEDULE A
I. The Consultant's services shall include but not be limited to the following:
1. Consultant shall act, generally, as an advisor to the Company
with respect to existing and potential customers, as well as
being a liaison between the Company and such persons.
2. As the Company shall request or direct, Consultant shall assist
in establishing and advising the Company with respect to:
meetings and interviews of Company officers by other members of
the financial community both in the United States and in Europe.
3. As the Company shall request or direct, Consultant shall act
generally as a management consultant to the Company including:
(a) assisting in writing business plans; (b) participating in
strategic planning sessions (c) identifying and evaluating
potential acquisition candidates; (d) introducing the Company to
potential business partners and customers; and (e) introducing
the Company to venture capital firms, underwriters, banks,
financial advisors, and financial institutions both in the United
States and in Europe.
II. The parties recognize that certain responsibilities and obligations are
imposed by both U.S. and foreign securities laws as well as by the applicable
rules and regulations of the NASD, in-house `due diligence' or `compliance'
departments of brokerage houses, etc. Accordingly Consultant agrees to the
following limitations on services:
1. Consultant shall NOT release any financial or other information
or data about the Company without the consent and approval of the
Company.
2. Consultant shal1 NOT conduct any meeting with financial analyst
without informing the Company in advance of the proposed meeting
and the format or agenda of such meeting and the Company may
elect to have a representative of the Company attend such
meeting.
3. Consultant shall NOT release any information or data about the
Company to any selected or limited person(s), entity, or group if
Consultant is aware that such information of data has not been
generally released or promulgated/
4. Consultant shall NOT take any action or advise or knowingly
permit the Company to take any actions, which would violate any
foreign securities laws or rules and regulations issued
thereunder.
5. Consultant shall NOT solicit or accept any investments from
individual or institutional investors, but shall refer any
prospective investors to the Company.
