EXHIBIT 4.3
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated May 28, 2003, is made by
and between Xxxxxx Xxxxxxx, an individual residing in California, whose address
is 00000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000 ("Consultant"), and Dtomi, Inc., a
Nevada corporation, having its place of business at 000 Xxxxxx Xxx., Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000 ("Client").
WHEREAS, Consultant has extensive background in the area of corporate
finance;
WHEREAS, Consultant desires to be engaged by Client to provide corporate
finance consulting services to the Client in his area of knowledge and expertise
on the terms and subject to the conditions set forth herein;
WHEREAS, Client is a public corporation seeking to raise capital for its
business; and
WHEREAS, Client desires to engage Consultant to provide corporate finance
consulting services to the Client in his area of knowledge and expertise on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant provides to
Client, the parties agree as follows:
1. SERVICES OF CONSULTANT.
Consultant agrees to perform for Client all necessary services required in
providing corporate finance consulting services for Client (the "Services"). As
such Consultant will provide bona fide services to Client.
2. CONSIDERATION.
Client agrees to pay Consultant, as his fee and as consideration for
services provided, an option to purchase a total of Two Hundred Thousand
(200,000) shares of common stock in Client, exercisable at $0.05 per share, for
a term of three (3) months, and pursuant to that certain Non-Qualified Stock
Option Agreement attached hereto as EXHIBIT A.
3. CONFIDENTIALITY.
Each party agrees that during the course of this Agreement, information
that is confidential or of a proprietary nature may be disclosed to the other
party, including, but not limited to, product and business plans, software,
technical processes and formulas, source codes, product designs, sales, costs
and other unpublished financial information, advertising revenues, usage rates,
advertising relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information that the
receiving party can demonstrate (a) is, as of the time of its disclosure, or
thereafter becomes part of the public domain through a source other than the
receiving party, (b) was known to the receiving party as of the time of its
disclosure, (c) is independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality obligation
to the providing party.
4. INDEMNIFICATION.
(a) CLIENT.
Client agrees to indemnify, defend, and hold harmless Consultant and/or his
agents, and to defend any action brought against said parties with respect to
any claim, demand, cause of action, debt or liability, including reasonable
attorneys' fees to the extent that such action is based upon a claim that: (i)
is true, (ii) would constitute a
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breach of any of Client's representations, warranties, or agreements hereunder,
or (iii) arises out of the negligence or willful misconduct of Client.
(b) CONSULTANT.
Consultant agrees to indemnify, defend, and hold harmless Client, its
directors, employees and agents, and defend any action brought against same with
respect to any claim, demand, cause of action, debt or liability, including
reasonable attorneys' fees, to the extent that such an action arises out of the
gross negligence or willful misconduct of Consultant.
(c) NOTICE.
In claiming any indemnification hereunder, the indemnified party shall
promptly provide the indemnifying party with written notice of any claim which
the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
5. TERMINATION AND RENEWAL.
(a) TERM.
This Agreement shall become effective on the date appearing next to the
signatures below and terminate three (3) months after the effective date.
(b) TERMINATION.
Either party may terminate this Agreement on thirty (30) calendar days
written notice, or if prior to such action, the other party materially breaches
any of its representations, warranties or obligations under this Agreement.
Except as may be otherwise provided in this Agreement, such breach by either
party will result in the other party being responsible to reimburse the
non-defaulting party for all costs incurred directly as a result of the breach
of this Agreement, and shall be subject to such damages as may be allowed by law
including all attorneys' fees and costs of enforcing this Agreement.
(c) TERMINATION AND PAYMENT.
Upon any termination or expiration of this Agreement, Client shall pay all
unpaid and outstanding fees through the effective date of termination or
expiration of this Agreement. And, upon such termination, Consultant shall
provide and deliver to Client any and all outstanding Services due through the
effective date of this Agreement.
6. MISCELLANEOUS.
(a) INDEPENDENT CONTRACTOR.
This Agreement establishes an "independent contractor" relationship between
Consultant and Client.
(b) RIGHTS CUMULATIVE; WAIVERS.
The rights of each of the parties under this Agreement are cumulative. The
rights of each of the parties hereunder shall not be capable of being waived or
varied other than by an express waiver or variation in writing. Any failure to
exercise or any delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in
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any way preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
(c) BENEFIT; SUCCESSORS BOUND.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their heirs,
executors, administrators, representatives, successors, and permitted assigns.
(d) ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof. There are no promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement. Any such negotiations, promises, or understandings
shall not be used to interpret or constitute this Agreement.
(e) ASSIGNMENT.
Neither this Agreement nor any other benefit to accrue hereunder shall be
assigned or transferred by either party, either in whole or in part, without the
written consent of the other party, and any purported assignment in violation
hereof shall be void.
(f) AMENDMENT.
This Agreement may be amended only by an instrument in writing executed by
all the parties hereto.
(g) SEVERABILITY.
Each part of this Agreement is intended to be severable. In the event that
any provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall be
severed or modified to the extent necessary to render it enforceable and as so
severed or modified, this Agreement shall continue in full force and effect.
(h) SECTION HEADINGS.
The Section headings in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
(i) CONSTRUCTION.
Unless the context otherwise requires, when used herein, the singular shall
be deemed to include the plural, the plural shall be deemed to include each of
the singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
(j) FURTHER ASSURANCES.
In addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make, execute
and deliver or cause to be made, executed and delivered, to the requesting
party, such other instruments and to take such other actions as the requesting
party may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
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(k) NOTICES.
Any notice which is required or desired under this Agreement shall be given
in writing and may be sent by personal delivery or by mail (either a. United
States mail, postage prepaid, or b. Federal Express or similar generally
recognized overnight carrier), addressed as follows (subject to the right to
designate a different address by notice similarly given):
To Client:
Dtomi, Inc.
000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to:
Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
To Consultant:
Xxxxxx Xxxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(l) GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Washington without reference to its conflicts of laws rules
or principles. Each of the parties consents to the exclusive jurisdiction of the
federal court of the Western District of Washington in connection with any
dispute arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on FORUM NON
COVENIENS, to the bringing of any such proceeding in such jurisdictions.
(m) CONSENTS.
The person signing this Agreement on behalf of each party hereby represents
and warrants that he has the necessary power, consent and authority to execute
and deliver this Agreement on behalf of such party.
(n) SURVIVAL OF PROVISIONS.
The provisions contained in paragraphs 3, 4 and 6 of this Agreement shall
survive the termination of this Agreement.
(o) EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and have agreed to and accepted the terms herein on the date written above.
CLIENT:
DTOMI, INC.
By :
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Name:
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Its:
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CONSULTANT:
By:
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Name: Xxxxxx Xxxxxxx
00
