Exhibit 4.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated October 10,
2003, is made by and between Xxxx Xxxxxxx, M.D. ("Consultant"), and Dtomi, Inc.,
a Nevada corporation ("Client").
WHEREAS, Consultant has extensive background in the area of providing
companies with access to business opportunities that complement their core
businesses;
WHEREAS, Consultant desires to be engaged by Client to provide
consulting services regarding introducing the Client to business opportunities
that complement the Air Spring Axle to Client on the terms and subject to the
conditions set forth herein (the "Services");
WHEREAS, Client is a publicly held corporation with its common stock
shares trading on the Over the Counter Bulletin Board under the ticker symbol
"DTOI," and desires to further develop its business and customers; and
WHEREAS, Client desires to engage Consultant to provide the Services in
its 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 the Services. As such
Consultant will provide bona fide services to Client. The services to be
provided by Consultant will not be 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 for Client's securities.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration for
services provided, Four Hundred Sixty Five Thousand Six Hundred Twenty One
(465,621) shares of common stock of the Client.
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and other unpublished financial information, advertising revenues, usage rates,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.
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4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15) days of the
due date. Failure of Client to finally pay any fees within fifteen (15) days
after the applicable due date shall be deemed a material breach of this
Agreement, justifying suspension of the performance of the Services provided by
Consultant, will be sufficient cause for immediate termination of this Agreement
by Consultant. Any such suspension will in no way relieve Client from payment of
fees, and, in the event of collection enforcement, Client shall be liable for
any costs associated with such collection, including, but not limited to, legal
costs, attorneys' fees, courts costs, and collection agency fees.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall 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 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 shall 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.
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6. Termination and Renewal.
(a) Term.
This Agreement shall become effective on the date appearing next to the
signatures below and terminate one (1) year thereafter. Unless otherwise agreed
upon in writing by Consultant and Client, this Agreement shall not automatically
be renewed beyond its Term.
(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.
7. 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 any way preclude such party from exercising any
such right or constitute a suspension or any variation of any such right.
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(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.
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(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.
(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):
If to Client: Dtomi, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 0xx Xxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
If to Consultant: Xxxx Xxxxxxx, M.D.
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(l) Governing Law.
This Agreement shall be governed by the 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 courts of the State 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.
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(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 7 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.
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: ______________________________________
Xxxxx X. Xxxx - Chairman of the Board
CONSULTANT:
By:
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Name: Xxxx Xxxxxxx
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