EXHIBIT 10.3. MANAGEMENT AND CONSULTING AGREEMENT BETWEEN COSMOZ.COM AND
SHARPMANAGEMENT, LLC
MANAGEMENT AND CONSULTING AGREEMENT
This Agreement is made and entered into on May 17, 2000, but shall have an
effective date of 1/10/2000 (the "Effective Date"), by and between Cosmoz.com,
Inc., a Delaware corporation ("Company") and SharpManagement, LLC, a Delaware
LLC ("SharpManagement"), and Wilfred Shaw, SharpManagement's sole Member
("Shaw").
THE PARTIES AGREE AS FOLLOWS:
1. Retention of SharpManagement/ Performance of Services. Company hereby retains
SharpManagement to provide the services described on EXHIBIT A (the "Services"),
and SharpManagement hereby agrees to use its best efforts to provide the
Services, in accordance with EXHIBIT A. Shaw shall personally perform all
Services under this Agreement on behalf of SharpManagement. SharpManagement and
Shaw 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 SharpManagement,
the Company agrees to provide the following compensation (the "Compensation"):
(a) The Company shall pay to SharpManagement a "signing bonus" of
$180,000.00.
(b) The Company shall pay to SharpManagement, during the term of
this Agreement, $15,000.00 per month for a period of one year from the
Effective Date. (c) The Company shall grant non-qualified stock options
to SharpManagement to purchase 1,875,000 shares of the Company's common
stock at its 4/17/00 closing price of $0.5893 per share. Such options
shall be exercisable immediately.
3. Expenses. Unless otherwise specifically authorized by a Company
purchase order, SharpManagement shall be responsible for paying all of his
expenses related to the provision of Services.
4. Term. This Agreement shall begin with the Effective Date and shall
continue for one year (the "Term"). The Term shall not automatically renew.
5. Removal by Shareholders. At any time, SharpManagement and/or Shaw may
be removed as CEO by the shareholders of the Company at a regular or special
meeting. This Agreement shall not terminate upon any such vote by the
shareholders to remove SharpManagement and/or Shaw as Director. In the event
that SharpManagement and/or Shaw is removed as Director, the Compensation shall
remain due and payable.
6. Conflicting Obligations and Confidentiality. Except as specifically
disclosed herein, SharpManagement and Shaw have 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
SharpManagement and Shaw from fully complying with all of SharpManagement's and
Shaw's obligations under this Agreement. Neither SharpManagement nor Shaw shall,
during the term of this Agreement, serve as the CEO of any company or entity
which competes directly with the Company.
7. Non-Disclosure Agreement. Shaw acknowledges that he has executed the
Company's standard Non-Disclosure Agreement.
8. GENERAL PROVISIONS.
(a) 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. (b) 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.
59
<PAGE>
(c) 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.
(d) 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 in the
courts of the State of California for San Mateo County.
(e) 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.
(f) 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.
(g) 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. (h) Attorneys' Fees. Should
any litigation be commenced between the parties concerning the rights
or obligations of the parties under this Agreement, each party shall
bear its own attorney's fees and costs of litigation. (i) 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.
(j) 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 as of
the date first written above.
Company: SharpManagement:
Cosmoz.com, Inc., 533 Airport Blvd. Ste. 400
1515 So. El Camino Real Burlingame, CA 94010
San Mateo, CA 94402
Fax: 650.358.0188
By: /s/Michael Spadaccini By: /s/ Wilfred Shaw
---------------------- ---------------------------------
Michael Spadaccini Wilfred Shaw, Managing Member
General Counsel SharpManagement, LLC
60
<PAGE>
EXHIBIT A
DESCRIPTION OF SERVICES
Responsibilities As CEO. Shaw shall have all responsibilities of a CEO of the
Company imposed by Delaware or applicable law, and the Articles of Incorporation
and Bylaws of the Company. These responsibilities shall include, but shall not
be limited to, the following:
Shaw shall use his best efforts to attend scheduled meetings of the Company's
executives and managers, as well as meetings of the Company's shareholders;
Shaw shall participate with full managing authority and shall assist in setting
overall objectives, approving plans and programs of operation, shall advise on
matters of mergers, acquisitions, consolidations, financing, and shall advise on
and assist with formulating general operating policies.
Shaw shall offer advice and counsel to the Board of Directors, & to the
Company's Officers and Employees.
Shaw shall, if requested, review management performance, and report to the Board
of Directors or Officers of the Company.
61
