DIRECTOR'S AGREEMENT
THIS AGREEMENT is made and entered into effective as of March 20th,
2000 (the "EFFECTIVE DATE"), by and between Xxxxxx.xxx, Inc., a Delaware
corporation ("Company") and Xxxx Xxxxxxxxx ("Xxxxxxxxx").
THE PARTIES AGREE AS FOLLOWS:
1. Retention of Xxxxxxxxx/ Performance of Services. Company hereby retains
Xxxxxxxxx to provide the services described on EXHIBIT A (the "Services"), and
Xxxxxxxxx hereby agrees to use his best efforts to provide the Services, in
accordance with EXHIBIT X. Xxxxxxxxx shall not allow any other person or entity
to perform any of the Services for or instead of Xxxxxxxxx. Xxxxxxxxx shall
comply with the statutes, rules, regulations and orders of any governmental or
quasi-governmental authority, applicable to the performance of the Services.
2. Compensation. In exchange for Company's retention of Xxxxxxxxx, the Company
agrees to grant to Xxxxxxxxx an option to purchase up to two hundred-fifty
thousand (250,000) shares of COSMOZ's Common Stock pursuant to the COSMOZ Stock
Option Plan. Both parties agree to execute an Incentive Stock Option Agreement
within 21 days following the Effective Date. The following terms shall apply to
the stock option grant pursuant to this Paragraph and the Plan: The "Date of
Option Grant" shall be the same date as the Effective Date; the "Initial Vesting
Date" shall be the same date as the Effective Date; and the "Option Expiration
Date" shall be one (1) year after the Effective Date.
3. Expenses. All reasonable expenses must get written permission by Xxxxxx.xxx.
4. Term. This Agreement shall begin with the Effective Date and shall continue
until the date of the next occurring annual meeting of shareholders of the
Company. Upon the date of the next occurring annual meeting of shareholders of
the Company and thereafter, the Term of this Agreement may be extended for one
or more additional one (1) year terms if Xxxxxxxxx is elected a Director by the
shareholders of the Company at annual shareholders meetings.
5. Removal by Shareholders. At any time, Xxxxxxxxx may be removed as Director by
the shareholders of the Company at a regular or special meeting. This Agreement
shall terminate automatically upon any such vote by the shareholders to remove
Xxxxxxxxx as Director. This Agreement is at the will of both parties, and either
party may terminate the Agreement at any time with or without cause. Both
parties waive any and all causes of action arising directly from the termination
of the Agreement.
6. Conflicting Obligations. Xxxxxxxxx has no outstanding agreement or
obligation, and will not enter into any agreement or obligation, that is in
conflict with any of the provisions of this AGREEMENT or that would preclude
Xxxxxxxxx from fully complying with all of Xxxxxxxxx'x obligations under this
AGREEMENT. Xxxxxxxxx shall not, during the term of this AGREEMENT, improperly
use or disclose any proprietary or confidential information or trade secrets of
the Company or any third party. Xxxxxxxxx shall not serve on the Board of
Directors or the Board of Advisors of any company or entity which competes
indirectly or directly with Company, as determined in the sole discretion of the
Chairman of the Board of Directors of the Company. Xxxxxxxxx shall, within 10
days following the execution of this Agreement, execute the Company's standard
Non-Disclosure Agreement.
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General Provisions
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7.1 Further Assurances. Each party shall perform any and all further acts and
execute and deliver any documents which are reasonably necessary to carry out
the intent of this AGREEMENT.
7.2 Notices. All notices or other communications required or permitted by this
AGREEMENT or by law shall be in writing and shall be deemed duly served and
given when delivered personally or by facsimile, air courier, certified mail
(return receipt requested), postage and fees prepaid, to the party at the
address indicated in the signature block or at such other address as a party may
request in writing.
7.3 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding arbitration
administered by the American Arbitration Association in accordance with its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
7.4 Governing Law, Jurisdiction, and Venue. This Agreement shall be governed and
interpreted in accordance with the laws of the State of California, as such laws
are applied to agreements between residents of California to be performed
entirely within the State of California. Subject to the immediately preceding
paragraph, each party hereby consents to jurisdiction of and venue in the
federal district court for the Northern District of California, San Francisco
Division, and/or in the courts of the State of California for San Mateo County.
7.5 Entire Agreement/ Modification. This AGREEMENT sets forth the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes all prior written agreements, and all prior or contemporaneous oral
agreements and understandings, express or implied. No modification to this
AGREEMENT, nor any waiver of any rights, shall be effective unless assented to
in writing by the party to be charged, and the waiver of any breach or default
shall not constitute a waiver of any other right or any subsequent breach or
default.
7.6 Assignment. The rights contained in this AGREEMENT are of a unique character
and may not be assigned in whole or in part by either party without the prior
written consent of the other party; provided, however, that Company shall be
entitled to assign this AGREEMENT to a successor to all or substantially all of
its assets, whether by sale, merger, or otherwise.
7.7 Severability. If any of the provisions of this AGREEMENT are determined to
be invalid or unenforceable, the remaining provisions shall be deemed severable
and shall continue in full force and effect to the extent the economic benefits
conferred upon the parties by this AGREEMENT remain substantially unimpaired.
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7.8 Attorneys' Fees. Should any litigation be commenced between the parties
concerning the rights or obligations of the parties under this AGREEMENT, the
party prevailing in such litigation shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for its attorneys' fees in
such litigation. This amount shall be determined by the court in such litigation
or in a separate action brought for that purpose. In addition to any amount
received as attorneys' fees, the prevailing party also shall be entitled to
receive from the party held to be liable, an amount equal to the attorneys' fees
and costs incurred in enforcing any judgement against such party. This Section
is severable from the other provisions of this AGREEMENT and survives any
judgment and is not deemed merged into any judgment.
7.9 Construction. The headings of this AGREEMENT are for convenience only and
are not to be considered in construing this AGREEMENT. The language of this
AGREEMENT shall be construed according to its fair meaning and not strictly for
or against any party.
7.10 Counterparts. This AGREEMENT may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
AGREEMENT effective as of the date first written above.
Xxxxxx.xxx, Inc Xxxx Xxxxxxxxx:
1515 So. El Camino Real 00000 Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000 Xxxxxx, XX 00000
Fax: 000.000.0000 Fax: 000.000.0000
By: /s/ Xxxxxxx Xxxx /s/ Xxxx Xxxxxxxxx
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Xxxxxxx Xxxx, CEO Xxxx Xxxxxxxxx
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