{"id":39048,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-cybershop-com-and-kevin-s-miller.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-cybershop-com-and-kevin-s-miller","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-cybershop-com-and-kevin-s-miller.html","title":{"rendered":"Employment Agreement &#8211; CyberShop.com and Kevin S. Miller"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n         AGREEMENT ('Agreement') made as of this 7th day of February, 2000 (the\n'Effective Date'), by and between CyberShop.com, a Delaware corporation\n(hereinafter 'Employer'), and Kevin S. Miller (hereinafter 'Executive').\n\n                              W I T N E S S E T H:\n\n         WHEREAS, Employer wishes Executive to serve as an officer and executive\nof Employer; and\n\n         WHEREAS, Executive wishes to be so employed;\n\n         NOW, THEREFORE, in consideration of the mutual covenants hereinafter\nset forth, the parties hereto agree as follows:\n\n         1. Effective Date and Duties. Commencing as of the Effective Date,\nEmployer employs Executive as President to perform the duties normally incident\nto such positions. Without limiting the foregoing Executive's functions shall\ninclude investment banking, legal, strategic planning and finance. Executive\nshall at all times report to the Chairman of the Board President and Chief\nExecutive Officer of Employer.\n\n         2. Responsibilities. Executive agrees to devote all of Executive's\nbusiness time, efforts, skills and attention to fulfill Executive's duties and\nresponsibilities hereunder faithfully, diligently and competently.\n\n\n\n\n\n\n\n         3. Term. The term of this Agreement shall commence on the Effective\nDate and shall terminate two (2) years thereafter, unless sooner terminated as\nhereinafter provided. Notwithstanding the foregoing, this Agreement may be\nterminated by either party on 120 days prior written notice provided that the\nearliest effective time of termination shall be six months from the Effective\nDate.\n\n         4. Compensation. Employer shall pay to Executive as compensation for\nall services to be rendered by Executive hereunder the following:\n\n                  (a) A salary at the rate of Seventy- Five thousand ($75,000)\n         Dollars per annum. Such salary is hereinafter referred to as the Base\n         Salary.\n\n                  (b) Executive shall be eligible for bonuses, at such time and\n         in such amounts as shall be determined at the discretion of Employer's\n         Board of Directors (the 'Board) based on its assessment of Executive's\n         performance of Executive's duties and on the financial performance of\n         Employer.\n\n                  (c) Employer will reimburse Executive for all reasonable\n         travel and business expenses incurred by Executive in connection with\n         Executive's services hereunder in accordance with the usual practices\n         and policies of Employer in effect from time to time, upon presentation\n         of vouchers. The Company will reimburse car travel expenses as\n         submitted of up to a maximum of $700 per month.\n\n\n\n\n\n\n                  (d) Employer will provide an apartment for the use of\n         Executive through  ________________, 2000.\n\n\n                           (e) Employer will make available to Executive health\n         benefits as currently in effect or as modified during the term of this\n         Agreement consistent with the health benefits offered to other\n         executives of Employer. In addition, Executive will be eligible for and\n         will be offered participation in any and all group insurance, hospital,\n         dental, major medical and disability benefits and stock option plans or\n         other similar fringe benefits which are currently offered or may\n         hereafter be offered to other executives of Employer during the term of\n         this Agreement. Under current policies the single health plan requires\n         a co-pay by Executive of $104 per pay period and the dental plan is\n         optional and requires a co-pay by Executive.\n\n         5. Stock Options. Executive shall be granted on the date hereof an\noption (the 'Option') to purchase 500,000 shares of Employer's common stock,\n$.001 par value per share (the 'Common stock') at an exercise price of $5.06 per\nshare said price being equal to the fair market value as determined under the\nCompany's 1998 Stock Option Plan on the date of grant. The Option shall vest and\nbe exercisable as follows: (i) 167,000 vest after 6 months (ii) Balance vest\n1\/18 every month over 18 months. The Options shall be non-qualified stock\noptions, shall expire five (5) years from the date of grant and shall otherwise\nbe governed by the Plan, as well as the applicable option agreement to be\nentered into pursuant to the terms of the Plan. Vesting of the Options shall be\naccelerated so that all Options become immediately vested upon the occurrence of\na change of control of the Company, the termination of the\n\n\n\n\n\n\nemployment of Executive without cause or the raising of equity by the Company of\nan aggregate of $10,000,000 after the date hereof. A 'change in control' shall\nbe deemed to occur when, a corporation, partnership, association or entity,\ndirectly or indirectly (through a subsidiary or otherwise), (i) acquires or is\ngranted the right to acquire, directly or though merger or similar transaction,\na majority of the Company's outstanding voting securities or shares, or (ii)\nacquires all or substantially all of the Company's assets.\n\n         6. Termination on Death. In the event of Executive's death during the\nterm of this Agreement, this Agreement shall terminate immediately, provided,\nhowever, that Executive's legal representatives shall be entitled to receive the\nBase Salary which would otherwise have been due Executive had he worked through\nthe end of the month in which Executive died.\n\n         7. Termination on Disability. If during the term of this Agreement,\nExecutive is unable to perform Executive's duties hereunder on account of\nillness or other incapacity, and such illness or other incapacity shall continue\nfor a period of more than three (3) consecutive months during any twelve (12)\nmonth period Employer shall have the right, on thirty (30) days' notice to\nExecutive, given after such three (3) month period, to terminate this Agreement.\nIn the event of any such termination Employer shall be obligated to pay to\nExecutive the Base Salary which would otherwise be due Executive until the\nexpiration of the month of employment during which the termination occurred plus\nthree (3) additional months of the Base Salary for the year in which Executive\nwas terminated. If, prior to the date specified on such notice, Executive's\nillness or incapacity shall have terminated and Executive shall have taken up\nthe performance of Executive's duties thereunder, Executive shall be entitled to\nresume Executive's employment hereunder as though such notice had not been\ngiven. The Board shall\n\n\n\n\n\n\n\ndetermine in good faith, upon consideration of medical evidence satisfactory to\nit, whether Executive by reason of physical or mental disability shall be unable\nto perform the services required of Executive hereunder.\n\n         8. Termination for Cause. If Employer shall terminate Executive's\nemployment hereunder for Cause, or if Executive shall voluntarily leave\nExecutive's employment hereunder, this Agreement shall terminate immediately and\nEmployer shall pay to Executive an amount equal to the Base Salary hereunder\nthrough the date of such termination. Cause shall mean (i) any conviction of any\ncrime (whether or not involving Employer) constituting a felony in the\njurisdiction involved, (ii) engaging in any substantiated act involving moral\nturpitude, (iii) engaging in any act which, in each case, subjects, or if\ngenerally known would subject, Employer to public ridicule or embarrassment,\n(iv) gross misconduct in the performance of Executive's duties hereunder, (v)\nwillful failure or refusal to perform such duties as may be relegated to\nExecutive commensurate with Executive's position, or (vi) material breach of any\nprovision of this Agreement by Executive.\n\n         9. Confidentiality. Executive covenants and agrees with Employer that\nExecutive will not, during the term of this Agreement and thereafter directly or\nindirectly use, communicate, disclose or disseminate to anyone (except to the\nextent reasonably necessary for Executive to perform Executive's duties\nhereunder, except as required by law or except if generally available to the\npublic otherwise than through use, communication, disclosure or dissemination by\nExecutive) any Confidential Information (as hereinafter defined) concerning the\nbusinesses or affairs of Employer or of any of its affiliates or subsidiaries\nwhich Executive\n\n\n\n\n\n\nmay have acquired in the course of or as incident to Executive's employment or\nprior dealings with Employer or with any of its affiliates or subsidiaries.\n\n             'Confidential Information' shall mean (a) all knowledge,\ninformation and material concerning Employer or its business or the business of\nany of its affiliates or subsidiaries that shall become known to Executive as a\nconsequence of Executive's relationship with Employer, (b) all information that\nhas been disclosed to Employer by any third party under an agreement or\ncircumstances requiring such information to be kept confidential, and (c) all\nknowledge, information or material concerning Inventions that are, under this\nAgreement, owned by Employer or assigned by Executive to Employer; provided,\nthat Confidential Information shall not include knowledge, information or\nmaterial that is or becomes generally known or available to others in businesses\nengaged in by Employer or to the public (other than through unauthorized\ndisclosure). Confidential Information shall include without limitation (a)\ninformation of a technical nature, such as information regarding past, present\nand future research, financial data, product information, marketing plans,\ncomputer programs (whether in source or object code form or other form and\nwhether contained on program listings, magnetic tape, magnetic disks, CD ROMs or\nother media), logic, flow charts, specifications, documentation and ideas\nrelating to the activities of Employer, (b) information of a business nature,\nsuch as information regarding past, present and future client development,\nstrategies, procurement specifications, cost and financial data, contracts,\nquotations and names of actual and prospective clients or customers, and (c) all\ndocuments, drawings, reports, client lists, and other physical embodiments of\nall such information.\n\n\n\n\n\n\n\n             'Inventions' shall mean each of the following, but only to the\nextent they relate to the business of commerce conducted over the Internet: all\ninventions, discoveries, developments, ideas, works, improvements, enhancements,\nworks of authorship, products and computer software, whether or not patentable,\nand anything else that is subject to or potentially subject to the patent,\ncopyright or trade secret laws of any jurisdiction.\n\n         10. Non-Competition. Executive acknowledges that Executive's services\nand responsibilities are of particular significance to Employer and that\nExecutive's position with Employer has given and will give Executive close\nknowledge of its policies and trade secrets.\n\n             Since Employer is in a creative and competitive business,\nExecutive's continued and exclusive service to Employer under this Agreement is\nof a high degree of importance.\n\n             Executive covenants and agrees with Employer that Executive will\nnot, during the term of this Agreement and for a period of eighteen months after\nthe termination of Executive's employment hereunder, with respect to\nsubparagraph (i) and twelve months with respect to subparagraphs (ii) and (iii)\nin any manner, directly or indirectly, (i) induce or attempt to influence any\npresent or future officer, employee, lessor, lessee, licensor or licensee of\nEmployer or its subsidiaries or its affiliates to leave its respective employ or\nsolicit or divert or service any of the customers or clients that Employer or\nits subsidiaries or its affiliates has or had in the one (1) year previous to\nthe date of termination of this Agreement, (ii) engage, in North America or any\nother territory in which Employer does or contemplates to do business, in any\nbusinesses presently engaged in or to be engaged in by Employer or its\nsubsidiaries or affiliates during the term of this Agreement, and (iii) except\nfor ownership of no more than 1%\n\n\n\n\n\n\n\nof the capital stock, be a stockholder of any corporation, or directly or\nindirectly own, manage, operate, conduct, control or participate in the\nownership, management, operation, conduct, control of, accept employment with,\nor be connected in any other manner with, any business which engages in any\ndirect competitive activity including, without limitation, any business which\nengages in retail commerce conducted over the Internet in any such geographic\nregion.\n\n         11. Remedies. Executive acknowledges that the remedy at law for any\nbreach or threatened breach by Executive of the covenants contained in\nparagraphs 9 and 10 would be wholly inadequate, and therefore Employer or its\nsubsidiaries or its affiliates shall be entitled to preliminary and permanent\ninjunctive relief and specific performance thereof. Paragraphs 9 and 10\nconstitute independent and separable covenants that shall be enforceable\nnotwithstanding rights or remedies that Employer or its subsidiaries or it\naffiliates may have under any other provision of this Agreement, or otherwise.\nIf any or all of the foregoing provisions of paragraphs 9 and 10 are held to be\nunenforceable for any reason whatsoever, it shall not in any way invalidate or\naffect the remainder or this Agreement which shall remain in full force and\neffect. If the period of time or geographical areas specified in paragraphs 9\nand 10 are determined to be unreasonable in any judicial proceeding, the period\nof time or areas of restriction shall be reduced so that this Agreement may be\nenforced in such areas and during such period of time as shall be determined to\nbe reasonable.\n\n         12. Full Review. Executive has carefully read and considered the\nprovisions hereof, and having done so, agrees that restrictions and remedies set\nforth in paragraphs 9, 10 and 11 (including, but not limited to, the time\nperiods of restrictions) are fair and reasonable and are reasonably required for\nthe protection of the interests of Employer.\n\n\n\n\n\n\n\n         13. Representation. Executive represents and warrants to Employer that\nExecutive is not now under any obligation of a contractual or other nature to\nany person, firm or corporation which is inconsistent or in conflict with this\nAgreement, or which would prevent, limit or impair in any way the execution of\nthis Agreement or the performance by Executive of Executive's obligations\nhereunder and Executive will indemnify and hold harmless Employer, its\ndirectors, officers and employees against and in respect of all liability, loss,\ndamage, expense or deficiency resulting from any misrepresentation, or breach of\nany warranty or agreement made by Executive in connection with Executive's\nemployment hereunder.\n\n         14. Waiver. The waiver by either party of a breach of any provision of\nthis Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach thereof.\n\n         15. Notices. Any and all notices referred to herein shall be sufficient\nif furnished in writing and sent by certified mail, return receipt requested, to\nthe respective parties at the addresses set forth below, or such other address\nas either party may from time to time designate in writing.\n\nTo Executive:                       To Employer:\n\nKevin S. Miller                     CyberShop.com, Inc.\n                                    116 Newark Avenue\n                                    Jersey City, New Jersey  07302\n                                    Attention:  Chairman of the Board\n\n                                    With copy to:\n\n                                    Davis &amp; Gilbert LLP\n                                    1740 Broadway\n                                    New York, New York  10019\n                                    Attention:  Walter M. Epstein, Esq.\n\n\n\n\n\n\n         16. Assignability. This Agreement shall be binding upon, and shall\ninure to the benefit of, Employer and its successors and assigns, and Executive\nand Executive's legal representatives, heirs, legatees and distributees, but\nneither this Agreement nor any rights hereunder shall be assignable, encumbered\nor pledged by Executive.\n\n         17. Entire Agreement. This Agreement supersedes any and all prior\nwritten or oral agreements between Employer and Executive and constitutes the\nentire agreement between the parties hereto with respect to the subject matter\nhereof and no modification, amendment or waiver of any of the provisions of this\nAgreement shall be effective unless in writing and signed by both parties\nhereto.\n\n         18. Applicable Law. This Agreement shall be construed and enforced in\naccordance with the laws of the State of New Jersey.\n\n         19. Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be an original, but all of which together\nshall constitute one and the same agreement.\n\n         20. Severability. If any provision or part of any provision of this\nAgreement is held for any reason to be unenforceable, the remainder of this\nAgreement shall nevertheless remain in full force and effect.\n\n         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed as of the day and year first above written.\n\n                                               CYBERSHOP.COM, INC.\n\n\n                                               By:______________________________\n                                               Name:  Jeffrey Tauber\n                                               Title: Chairman of the Board\n\n                                               Date:\n\n                                               _________________________________\n                                               Kevin S. Miller\n                                               Date:\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7700],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-39048","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gsv-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39048","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39048"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39048"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39048"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39048"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}