DIRECTOR AGREEMENT
Exhibit
10.2
This
DIRECTOR AGREEMENT (the “Agreement”) is made as of
February 10, 2021 (the “Effective Date”), by and
between Xxxxxxxxx.xxx Group, Inc., a Nevada corporation (the
“Company”), and Xxxxxx X.
Xxxxx, an individual with an address of 0000 Xxxxxxxxxx Xx, Xxx
Xxxxxxxxx, XX 00000 (the “Director”).
WHEREAS, the
Company appointed the Director on December 17, 2020, and desires to
enter into an agreement with the Director with respect to such
appointment; and
WHEREAS, the
Director is willing to accept such appointment and to serve the
Company on the terms set forth herein and in accordance with the
provisions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Position. Subject to the terms
and provisions of this Agreement, the Company shall cause the
Director to be appointed, and the Director hereby agrees to serve
the Company in such position, upon the terms and conditions
hereinafter set forth, provided, however, that the
Director’s continued service on the Board of Directors of the
Company (the “Board”) after the next
annual stockholders’ meeting shall be subject to approval by
the Company’s stockholders.
2.
Duties.
(a) During the
Directorship Term (as defined herein), the Director shall make
reasonable business efforts to attend all Board meetings, serve on
appropriate subcommittees as reasonably requested by the Board,
make himself available to the Company at mutually convenient times
and places, attend external meetings and presentations, as
appropriate and convenient, and perform such duties, services and
responsibilities, and have the authority commensurate to such
position.
(b) The Director will
use his best business efforts to promote the interests of the
Company. The Company recognizes that the Director (i) is or may
become a full-time executive employee of another entity and that
his responsibilities to such entity must have priority and (ii)
sits or may sit on the board of directors of other entities.
Notwithstanding the same, the Director will use reasonable business
efforts to coordinate his respective commitments so as to fulfill
his obligations to the Company and, in any event, will fulfill his
legal obligations as a Director. Other than as set forth above, the
Director will not, without the prior notification to the Board,
engage in any other business activity which could materially
interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of the
reasonable policies established from time to time by the Company,
provided that the
foregoing shall in no way limit his activities on behalf of (i) any
current employer and its affiliates or (ii) the board of directors
of any entities on which he currently sits. At such time as the
Board receives such notification, the Board may require the
resignation of the Director if it determines that such business
activity does in fact materially interfere with the performance of
the Director’s duties, services and responsibilities
hereunder.
3.
Compensation.
(a) Cash Stipend. The
Director shall receive an annual cash stipend of Twenty Thousand
Dollars ($20,000).
(b) Stock Options. The
Director shall receive, upon execution of this Agreement, a
non-qualified stock option to purchase up to fifty thousand
(50,000) shares of the Company’s common stock at an exercise
price per share equal to $2.70. Such option shall be exercisable
for a period of 3 years. The option shall vest in equal quarterly
amounts beginning on the Effective Date and ending on the third
anniversary of the Effective date, and such vesting schedule shall
be no less favorable than the vesting schedule applicable to other
directors of the Company. Notwithstanding the foregoing, if the
Director ceases to be a member of Board at any time during the
three-year vesting period for any reason (such as resignation,
withdrawal, death, disability or any other reason), then any
un-vested options shall be forfeited. Upon the occurrence of a
Change in Control, any un-vested options shall vest immediately,
provided the Director serves on the Board as of the date of such
Change in Control. “Change in Control” shall
mean any sale, conveyance, assignment or other transfer, directly
or indirectly, of any ownership interest of the Company, which
results in any change in the identity of the individuals or
entities in Control of the Company. “Control” shall mean the
possession, directly or indirectly, of the material assets of the
Company or of of the power to direct, or cause the direction of,
the management and policies of a person by contract, voting of
securities, or otherwise.
(c) Independent
Contractor. The Director’s status during the Directorship
Term shall be that of an independent contractor and not, for any
purpose, that of an employee or agent with authority to bind the
Company in any respect. All payments and other consideration made
or provided to the Director under this Section 3 shall be made or
provided without withholding or deduction of any kind, and the
Director shall assume sole responsibility for discharging all tax
or other obligations associated therewith.
(d) Expense
Reimbursements. During the Directorship Term, the Company shall
reimburse the Director for (i) all reasonable out-of-pocket
expenses incurred by the Director in attending any in-person
meetings, provided
that the Director complies with the generally applicable policies,
practices and procedures of the Company for submission of expense
reports, receipts or similar documentation of such expenses, and
(ii) any costs associated with filings required to be made by the
Director or any of the entities managed or controlled by Director
to report beneficial ownership or the acquisition or disposition of
securities of the Company. Any reimbursements for allocated
expenses (as compared to out-of-pocket expenses of the Director)
must be approved in advance by the Company.
4. Directorship Term. The
“Directorship
Term,” as used in this Agreement, shall mean the
period commencing on the date hereof and terminating on the earlier
of the date of the next annual stockholders meeting and the
earliest of the following to occur:
(a)
the death of the Director;
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(b) the termination of
the Director from his membership on the Board by the mutual
agreement of the Company and the Director;
(c) the removal of the
Director from the Board by the majority stockholders of the
Company; and
(d)
the resignation by the Director from the Board.
5. Director’s Representation and
Acknowledgment. The Director represents to the Company that
his execution and performance of this Agreement shall not be in
violation of any agreement or obligation (whether or not written)
that he may have with or to any person or entity, including without
limitation, any prior or current employer. The Director hereby
acknowledges and agrees that this Agreement (and any other
agreement or obligation referred to herein) shall be an obligation
solely of the Company, and the Director shall have no recourse
whatsoever against any officer, director, employee, stockholder,
representative or agent of the Company or any of their respective
affiliates with regard to this Agreement.
6.
Director
Covenants.
(a) Unauthorized
Disclosure. The Director agrees and understands that in the
Director’s position with the Company, the Director has been
and will be exposed to and receive information relating to the
confidential affairs of the Company, including, but not limited to,
technical information, business and marketing plans, strategies,
customer information, other information concerning the
Company’s products, services, promotions, development,
financing, expansion plans, business policies and practices, and
other forms of information considered by the Company to be
confidential, and proprietary and in the nature of trade secrets.
The Director agrees that during the Directorship Term and
thereafter, the Director will keep such information confidential
and will not disclose such information, either directly or
indirectly, to any third person or entity without the prior written
consent of the Company; provided, however, that (i) the Director
shall have no such obligation to the extent such information (A) is
or becomes publicly known or generally known in the Company’s
industry other than as a result of the Director’s breach of
his obligations hereunder; (B) was properly known to the Director,
without restriction, prior to disclosure by Company; or (C) is
obtained from a third party without an accompanying duty of
confidentiality and without a breach of such third party’s
obligations of confidentiality; and (ii) the Director may, after
giving prior notice to the Company to the extent practicable under
the circumstances, disclose such information to the extent required
by applicable laws or governmental regulations or judicial or
regulatory process. This confidentiality covenant has no temporal,
geographical or territorial restriction. Upon termination of the
Directorship Term, the Director will promptly return to the Company
and/or destroy at the Company’s direction all property, keys,
notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines,
technical data, other product or document, and any summary or
compilation of the foregoing, in whatever form, including, without
limitation, in electronic form, which has been produced by,
received by or otherwise submitted to the Director in the course or
otherwise as a result of the Director’s position with the
Company during or prior to the Directorship Term (except that the
Director may keep personal copies of (i) his compensation records,
(ii) materials distributed to shareholders generally and (iii) any
written agreement to which he is a
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party),
provided that the
Company shall retain such materials and make them available to the
Director if requested by him in connection with any litigation
against the Director under circumstances in which (i) the Director
demonstrates to the reasonable satisfaction of the Company that the
materials are necessary to his defense in the litigation and (ii)
the confidentiality of the materials is preserved to the reasonable
satisfaction of the Company.
(b)
Non-Solicitation. During the Directorship Term and for a period of
three (3) years thereafter, the Director shall not interfere with
the Company’s relationship with, or endeavor to entice away
from the Company, any person who, on the date of the termination of
the Directorship Term and/or at any time during the one year period
prior to the termination of the Directorship Term, was an employee
or customer (including those reasonably expected to be a customer)
of the Company or otherwise had a material business relationship
with the Company.
(c) Remedies. The
Director agrees that any breach of the terms of this Section 6
could result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law. The
Director therefore also agrees that in the event of said breach or
any threat of breach, the Company shall be entitled to an immediate
injunction and restraining order to prevent such breach and/or
threatened breach and/or continued breach by the Director and/or
any and all entities acting for and/or with the Director, without
having to prove damages or paying a bond, in addition to any other
remedies to which the Company may be entitled at law or in equity.
The terms of this paragraph shall not prevent the Company from
pursuing any other available remedies for any breach or threatened
breach hereof, including, but not limited to, the recovery of
damages from the Director. The Director acknowledges that the
Company would not have entered into this Agreement had the Director
not agreed to the provisions of this Section 6.
(d) The provisions of
this Section 6 shall survive any termination of the Directorship
Term, and the existence of any claim or cause of action by the
Director against the Company, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by
the Company of the covenants and agreements of this Section
6.
7. Indemnification. The Company
agrees to indemnify the Director for his activities as a member of
the Board as set forth in the Director and Officer Indemnification
Agreement attached hereto as Exhibit
A.
8. Non-Waiver of Rights. The
failure to enforce at any time the provisions of this Agreement or
to require at any time performance by the other party hereto of any
of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this
Agreement or any part hereof, or the right of either party hereto
to enforce each and every provision in accordance with its terms.
No waiver by either party hereto of any breach by the other party
hereto of any provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions at that time or at any prior or subsequent
time.
9. Notices. Every notice relating
to this Agreement shall be in writing and shall be given by
personal delivery, overnight delivery or by registered or certified
mail, postage prepaid, return receipt requested; to:
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If to
the Company:
Xxxxxxxxx.xxx
Group, Inc.
000
Xxxxx Xx. Xxxxx 000
Xxxxxxx, Xxxxx
00000
Attn:
Xxxx Xxxx, Chief Executive Officer
Telephone: (000)
000-0000
Email:
xxxx@xxxxxxxxx.xxx
with a
copy (which shall not constitute notice) to:
Lucosky
Xxxxxxxx LLP
000
Xxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx
Xxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000)
000-0000
Email:
xxxxxxxx@xxxxxx.xxx
If to
the Director:
Xxxxxx
X. Xxxxx
0000
Xxxxxxxxxx Xx.
Xxx
Xxxxxxxxx, XX 00000
Either
of the parties hereto may change their address for purposes of
notice hereunder by giving notice in writing to such other party
pursuant to this Section 9.
10. Binding Effect/Assignment. This
Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, personal
representatives, estates, successors (including, without
limitation, by way of merger) and assigns, as applicable.
Notwithstanding the provisions of the immediately preceding
sentence, neither the Director nor the Company shall assign all or
any portion of this Agreement without the prior written consent of
the other party.
11. Entire Agreement. This
Agreement (together with the other agreements referred to herein)
sets forth the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements, written or oral, between them as to such subject
matter.
12. Severability. If any provision
of this Agreement, or any application thereof to any circumstances,
is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other
provisions or applications of this Agreement.
13. Governing Law. This Agreement
and the legal relations among the parties shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Nevada, without regard to its conflict of laws rules. The parties
hereto hereby irrevocably and
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unconditionally (i)
agree that any action or proceeding arising out of or in connection
with this Agreement shall be brought in any court of the State of
Nevada (the “Nevada
Court”), and not in any other state or federal court
in the United States of America or any court in any other country,
(ii) consent to submit to the exclusive jurisdiction of the Nevada
Court for purposes of any action or proceeding arising out of or in
connection with this Agreement, (iii) waive any objection to the
laying of venue of any such action or proceeding in the Nevada
Court, and (v) waive, and agree not to plead or to make, any claim
that any such action or proceeding brought in the Nevada Court has
been brought in an improper or inconvenient forum.
14. Legal Fees. The parties hereto
agree that the non-prevailing party in any dispute, claim, action
or proceeding between the parties hereto arising out of or relating
to the terms and conditions of this Agreement or any provision
thereof (a “Dispute”), shall
reimburse the prevailing party for reasonable attorney’s fees
and expenses incurred by the prevailing party in connection with
such Dispute; provided, however, that the Director
shall only be required to reimburse the Company for its fees and
expenses incurred in connection with a Dispute if the
Director’s position in such Dispute was found by the court,
arbitrator or other person or entity presiding over such Dispute to
be frivolous or advanced not in good faith.
15. Modifications. Neither this
Agreement nor any provision hereof may be modified, altered,
amended or waived except by an instrument in writing duly signed by
both parties, which writing explicitly states the intent of both
parties hereto to supplement the terms herein.
16. Tense and Headings. Whenever
any words used herein are in the singular form, they shall be
construed as though they were also used in the plural form in all
cases where they would so apply. The headings contained herein are
solely for the purposes of reference, are not part of this
Agreement and shall not in any way affect the meaning or
interpretation of this Agreement.
17. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute
one and the same instrument.
[-Signature Page Follows-]
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IN
WITNESS WHEREOF, the Company has caused this Director Agreement to
be executed by authority of its Board of Directors, and the
Director has hereunto set his hand, on the day and year first above
written.
RECRUITER.
COM GROUP, INC.
By: 
Xxxx
Xxxx
Chief
Executive Officer
DIRECTOR
Xxxxxx
X. Xxxxx, an individual
EXHIBIT A
DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT
See
attached.
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[Exhibit A to
Director Agreement]
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