EXHIBIT 4.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") dated as of December
10, 2004 is made by and between Dtomi, Inc., a Nevada corporation (the
"Company"), and Xxxxxx Xxxxxxxxxxx ("Consultant").
WHEREAS, the Consultant has experience with providing strategic
marketing and business planning consulting services, and had been providing such
services pursuant to a Employment Agreement by and between Dtomi and you dated
February 16, 2004 (the "Employment Agreement") until December 10, 2004, when
such Employment Agreement was terminated pursuant to a letter agreement by and
between the Company and Consultant dated December 10, 2004.
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 period of nine months (the "Term").
3. Compensation. As compensation in full for Consultant's services
hereunder, the Company shall issue the Consultant five hundred thousand
(500,000) shares of common stock of the Company. The Consultant shall not be
entitled to any additional compensation for services under this Agreement.
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
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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
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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:
(a) Consultant willfully refuses to comply with or implement reasonable
policies established by the Company; or
(b) 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.
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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 Xxxxxxxxxxx
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_______________, Florida __________
Fax: _________________
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.
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(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 shall 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.
[signature page follows]
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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 X. Xxxxxxx
Title: Chief Executive Officer
The Consultant: By: ________________________________
Xxxxxx Xxxxxxxxxxx
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EXHIBIT A TO CONSULTING AGREEMENT
DESCRIPTION OF CONSULTING SERVICES:
A. to provide general consulting services to the Company in connection with the
development of new business ventures;
B. to obtain purchasers of the Company's Air Spring Axle System;
C. to make sales presentations of the Company's Air Spring Axle System;
D. to provide general consulting services on such matters as may be requested by
the Board of Directors of the Company; and
E. to assist the Company in developing marketing and promotional strategies.
The Company: DTOMI, INC.
By: ________________________________
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
The Consultant: By: ________________________________
Xxxxxx Xxxxxxxxxxx
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