EXHIBIT 4.6
NON-EMPLOYEE DIRECTOR AGREEMENT
This Non-Employee Director Agreement (the "Agreement"), entered into
this 10th day of December, 2004, by and between Dtomi, Inc., a Nevada
corporation (the "Company"), with an address of 000 X. Xxxx Xxxxxx Xxxx, Xxxxx
X-000, Xxxxxxxxxx, Xxxxxxx 00000, and Xxxx Xxxxxxx ("Director"), with an address
of _______________________, Florida ______, is made in consideration of the
mutual promises made herein and set forth as follows:
ARTICLE 1.
TERM OF AGREEMENT
1.1 This Agreement will become effective on March 1, 2005, and will
continue in effect for a term of two (2) years, until March 1, 2007, unless it
is terminated as provided in Article 6, below.
ARTICLE 2.
SERVICES TO BE PERFORMED BY DIRECTOR
2.1 Services. Director agrees to serve on the Board of Directors of
the Company for the Term of this Agreement.
2.2 Method of Performing Services. Director will determine the
method, details, and means of performing the above-described services. Director
may perform the Services under this Agreement at any suitable time and location
of Director's choice, however Director shall make himself available to the
Company as set forth in Section 4.3.
2.3 Status of Director. Director is and shall remain a non-employee
of the Company. Director and any agents or employees of Director shall not act
as an officer or employee of Company. Director has no authority to assume or
create any commitment or obligation on behalf of, or to bind, Company in any
respect in an individual capacity.
ARTICLE 3.
COMPENSATION
3.1 Share Fee. As compensation under this Agreement, Director will
receive five million (5,000,000) shares Company's Common Stock, $0.001 par value
(the "Shares"). The Shares shall be registered pursuant to Section 5 of the
Securities Act of 1933, as amended, on Securities and Exchange Commission Form
S-8.
3.2 Payment of Expenses. Director shall be responsible for his
normal and customary overhead business expenses incurred in performing services
under this Agreement, including without limitation, telephone, facsimile,
postage, photocopying, supplies, rent, and insurance. Travel expenses and other
extraordinary expenses in relation to the performance of duties for Company
shall require Director to obtain the prior written approval of the Company.
ARTICLE 4.
OBLIGATIONS OF DIRECTOR
4.1 Non-Exclusive Relationship. Company acknowledges and agrees that
the relationship with Director is non-exclusive and Director may represent,
perform services for, and contract with, entities and persons in addition to the
Company as Director.
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4.2 Director's Qualifications. Director represents and warrants that
Director has the qualifications and skills necessary to perform the services
under this Agreement in a competent and professional manner, and is able to
fulfill the requirements of this Agreement. Director shall comply with all
applicable federal, state and local laws in the performance of its obligations
hereunder, and all materials used by Director in fulfilling its obligations
under this Agreement shall not infringe upon any third party copyright, patent,
trade secret or other proprietary right. Director acknowledges and agrees that
failure to perform all the services required under this agreement constitutes a
material breach of the Agreement.
4.3 Availability of Director. Director acknowledges and agrees that
a material consideration of this Agreement is that Director be in charge of all
services rendered to the Company under this Agreement, and further, that
Director be available on a full-time basis, during regular business hours on at
least each regular business day of the Company.
4.4 Indemnity. Director agrees to indemnify, defend, and hold the
Company free and harmless from all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, attorneys' fees, and costs, including without limitation
expert witnesses' fees, that the Company may incur as a result of a breach by
Director of any representation or agreement contained in this Agreement.
4.5 Assignment. Neither this Agreement nor any duties or obligations
under this Agreement may be assigned by Director without the prior written
consent of the Company.
ARTICLE 5.
OBLIGATIONS OF COMPANY
5.1 Compliance with Requests. The Company agrees to comply with all
reasonable requests of Director necessary to the performance of Director's
duties under this Agreement.
5.2 Place of Work. The Company agrees to furnish an office for
Director on the Company's premises for use by Director in Safety Harbor, Florida
to facilitate his performance of the above-described services.
ARTICLE 6.
TERMINATION OF AGREEMENT
6.1 Termination on Notice. Notwithstanding any other provision of
this Agreement, either party may terminate this Agreement at any time by giving
thirty (30) days written notice to the other party. Unless otherwise terminated
as provided in this Agreement, this Agreement will continue in force until the
Services provided for in this Agreement have been fully and completely
performed.
6.2 Termination on Occurrence of Stated Events. This Agreement will
terminate automatically on the occurrence of any of the following events:
6.2.1 Unavailability of Director to manage and oversee all services
rendered to Company by Director under this Agreement;
6.2.2 Bankruptcy or insolvency of the Company;
6.2.3 Dissolution of the Company; and/or,
6.2.4 Any assignment of this Agreement by Director without the prior
written consent of the Company.
6.3 Termination for Default. If either party defaults in the
performance of this Agreement or materially breaches any of its provisions, the
non-breaching party may terminate this Agreement by giving written notification
to the breaching party. Termination will take effect immediately on receipt of
notice by the breaching party or five (5) days after mailing of notice,
whichever occurs first. For the purposes of this paragraph, material breach of
this Agreement includes, but is not limited to, the following:
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6.3.1 Director's failure to perform the services specified in this
Agreement;
6.3.2 Director's material breach of any representation or agreement
contained in Article 4, above; and/or,
6.3.3 The Company's material breach of any representation or
agreement contained in Article 5, above.
ARTICLE 7.
COMPANY INFORMATION
7.1 Nondisclosure/Nonuse of Company Information. Director agrees
that all information provided by the Company to Director under this Agreement
shall not be disclosed or used by Director for any purpose other than Director's
performance under this Agreement.
7.2 Confidential Information. Any written, printed, graphic, or
electronically or magnetically recorded information furnished by the Company for
Director's use is and shall remain the sole property of the Company. This
proprietary information includes, but is not limited to, investor lists,
marketing information, planning, drawings, specifications, and information
concerning the Company's employees, products, services, prices, and operations.
Director will keep this confidential information in the strictest confidence,
and will not disclose it by any means to any person except with Director's prior
written approval, and only to the extent necessary to perform the services under
this Agreement. This prohibition also applies to Director's employees, agents,
and subcontractors. On termination of this Agreement or request by the Company,
Director will return within two (2) days any confidential information in
Director's possession to the Company.
ARTICLE 8.
GENERAL PROVISIONS
8.1 Notices. Any notices to be given by either party to the other
shall be in writing and may be transmitted either by personal delivery or by
mail, registered or certified, postage prepaid with return receipt requested.
Mailed notices shall be addressed to the parties at the addresses appearing in
the introductory paragraph of this Agreement, but each party may change that
address by written notice in accordance with this section. Notices delivered
personally shall be deemed communicated as of the date of actual receipt. Mailed
notices shall be deemed communicated as of five (5) days after the date of
mailing.
8.2 Attorneys' Fees and Costs. If this Agreement gives rise to a
lawsuit or other legal proceeding between any of the parties hereto, the
prevailing party shall be entitled to recover court costs, necessary
disbursements (including expert witnesses' fees) and reasonable attorneys' fees,
in addition to any other relief such party may be entitled.
8.3 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the services provided by Director to Company under this Agreement, and
contains all of the covenants and agreements between the parties with respect to
this Agreement in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
8.4 Modifications. Any modification of this Agreement will be
effective only if it is in writing signed by the party to be charged.
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8.5 Effect of Waiver. The failure of either party to insist on
strict compliance with any of the terms, covenants, or conditions of this
Agreement by the other party shall not be deemed a waiver of that term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power at any one time or times be deemed a waiver or relinquishment of that
right or power for all or any other times.
8.6 Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
8.7 Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington.
8.8 Jurisdiction/Venue. Jurisdiction and venue for any dispute
arising out of this Agreement shall be exclusively in the city of Seattle,
Washington.
8.9 Construction. If any construction is to be made of any provision
of this Agreement, it shall not be construed against either party on the ground
such party was the drafter of the Agreement or any particular provision.
8.10 Time. Time is of the essence in this Agreement.
8.11 Corporate Authorization. If any signatory of this Agreement is
a corporation, said signatory represents and warrants that this Agreement and
the undersigned's execution of this Agreement have been duly authorized and
approved by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation(s) executing this Agreement on behalf of the
corporation(s) represent and warrant they are officers of the corporation(s)
with full authority to execute this Agreement on behalf of the corporation(s).
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement,
effective as of the date first above written.
THE COMPANY: DIRECTOR:
DTOMI, INC.
By: _______________________________ By: _______________________________
Name: Xxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
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