{"id":39050,"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-international-inc-and-francis.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-cybershop-international-inc-and-francis","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-cybershop-international-inc-and-francis.html","title":{"rendered":"Employment Agreement &#8211; CyberShop International Inc. and Francis O&#8217;Connor"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n\n         AGREEMENT  (\"Agreement\")  made as of this  _____ day of  February  (the\n\"Effective  Date\"),  by and between  CyberShop  International,  Inc., a Delaware\ncorporation   (hereinafter   \"Employer\"),   and  Francis  O'Connor  (hereinafter\n\"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.       Commencing  as  of  the  Effective  Date,   Employer   employs\nExecutive as Vice President and Chief Information Officer of Employer to perform\nthe duties  normally  incident to such  positions.  Executive shall at all times\nreport to the President of Employer.  Executive  agrees that he will relocate to\nthe New York\/New Jersey  metropolitan area on or before September 1, 1998. It is\nagreed that pending such relocation  Executive shall be permitted to perform his\nservices from his home in Iowa provided that  Executive is reasonably  available\n(every other week) to perform his services at the principal offices of Employer.\nExecutive  shall be  reimbursed  for airfare and  lodging  associated  with this\ntravel  consistent  with the  presentation of  documentation  in accordance with\nCompany procedures.\n\n         2.       Executive  agrees to devote all of Executive's  business time,\nefforts, skills and attention to fulfill Executive's duties and responsibilities\nhereunder faithfully, diligently and competently.\n\n         3.       The term of this  Agreement  shall  commence on the  Effective\nDate and shall terminate one (1) year  thereafter,  unless sooner  terminated as\nhereinafter  provided,   and  shall  be  subject  to  automatic  annual  renewal\nthereafter  unless at least sixty (60) days prior to the end of the term of this\nAgreement or any annual renewal period  Executive or Employer shall give written\nnotice to the other that this Agreement shall not be renewed.\n\n         4.       Employer  shall  pay to  Executive  as  compensation  for  all\nservices to be rendered by Executive hereunder the following:\n\n                  (a)    A salary at the rate of Ninety Six  Thousand and 00\/100\n($96,000)  Dollars per annum.  In the event that an initial  public  offering of\nEmployer's securities (the \"Public Offering\") is consummated, Executive's salary\nshall  be  increased  to the  rate  One  Hundred\n\n\n\n\nTwenty-Five  Thousand Dollars  ($125,000.00) per annum commencing on the date of\nconsummation of the Public Offering.  Such salary is hereinafter  referred to as\nthe Base Salary.\n\n                  (b)    Executive  shall be eligible for bonuses,  at such time\nand in such amounts as shall be determined at the discretion of Employer's Board\nof Directors (the \"Board\") based on its assessment of Executive's performance of\nExecutive's duties and on the financial performance of Employer.\n\n                  (c)    Employer will  reimburse  Executive for all  reasonable\ntravel  and  business   expenses   incurred  by  Executive  in  connection  with\nExecutive's  services  hereunder  in  accordance  with the usual  practices  and\npolicies of Employer in effect from time to time, upon presentation of vouchers.\n\n                  (d)    Employer  will  make available to Executive such health\nbenefits as are currently  offered or hereafter  will be offered during the term\nsuch of this Agreement to other executives of Employer.  In addition,  Executive\nwill be  eligible  for and will be  offered  participation  in any and all group\ninsurance,  hospital,  dental,  major medical and disability  benefits and stock\noption plans or other similar fringe benefits which are currently offered or are\nhereafter  offered  during the term of this  Agreement  to other  executives  of\nEmployer.\n\n         5.       Subject to the adoption of  Employer's  1998 Stock Option Plan\n(the \"Plan\") by the Board,  the approval of the Plan by Employer's  stockholders\nand the  approval of the grant of options to  Executive by the Board as provided\nherein,  Executive  shall be granted an option (the \"Option\") to purchase 64,000\nshares of  Employer's  common  stock,  $.001 par  value per share  (the  \"Common\nStock\") from Employer at an exercise price of $5.00 per share,  provided that in\nthe event that the price per share of Common  Stock sold in the Public  Offering\nis less than $5.00,  the Board shall  grant an  additional  number of options to\nExecutive  so that the  product of the total  number of options  granted and the\nexercise price per share of Common Stock sold in the Public Offering is equal to\n$320,000  (the  product of the 64,000  options and the $5.00 per share  exercise\nprice).  In the event that the Public Offering is not consummated on or prior to\nMay 15, 1998, the options  granted  pursuant to this Section 5 shall be canceled\nand new  options  shall be granted to  Executive  to purchase  64,000  shares of\nCommon  Stock at an exercise  price per share equal to the fair market  value of\nthe Common Stock on the May 15,  1998,  as  determined  by the Board in its sole\ndiscretion.  The Option shall vest and be exercisable as follows: (i) 1\/3 of the\nshares of Common  Stock  subject to the Option on the first  anniversary  of the\nEffective Date, (ii) 1\/3 of the shares of Common Stock subject to the Options on\nthe second  anniversary  of the Effective  Date,  and (iii) 1\/3 of the shares of\nCommon Stock  subject to the Option on the third  anniversary  of the  Effective\nDate,  subject to termination  as provided in the Plan,  and further  subject to\ntermination  in the event  that (x)  Executive  breaches  any term  hereof,  (y)\nExecutive's  employment  hereunder  is  terminated  for  Cause  (as  hereinafter\ndefined) or is terminated without Cause, or (z) Executive voluntarily terminates\nExecutive's  employment  hereunder.  The Option shall expire five (5) years from\nthe date of vesting.  The terms of the Option shall otherwise be governed by the\nPlan, as well as the applicable  option agreement to be entered into pursuant to\nthe terms of the Plan. \n\n                                       2\n\n\n\n         6.       In the  event of  Executive's  death  during  the term of this\nAgreement, this Agreement shall terminate immediately,  provided,  however, that\nExecutive's legal  representatives  shall be entitled to receive the Base Salary\nwhich would  otherwise  have been due Executive had he worked through the end of\nthe  month  in  which  Executive  died  and  provided  that  Executive's   legal\nrepresentatives  shall have the right to exercise  Options vested at the time of\ndeath for a period of three (3) months thereafter.\n\n         7.       If during the term of this  Agreement,  Executive is unable to\nperform  Executive's duties hereunder on account of illness or other incapacity,\nand such illness or other  incapacity  shall  continue for a period of more than\nthree (3) consecutive  months during any twelve (12) month period Employer shall\nhave the right, on thirty (30) days' notice to Executive, given after such three\n(3)  month  period,  to  terminate  this  Agreement.  In the  event  of any such\ntermination  Employer  shall be obligated  to pay to  Executive  the Base Salary\nwhich would  otherwise be due  Executive  until the  expiration  of the month of\nemployment  during  which the  termination  occurred  plus three (3)  additional\nmonths of the Base Salary for the year in which  Executive was  terminated.  If,\nprior to the date  specified in such notice,  Executive's  illness or incapacity\nshall have  terminated  and  Executive  shall have taken up the  performance  of\nExecutive's duties thereunder, Executive shall be entitled to resume Executive's\nemployment  hereunder as though such notice had not been given.  The Board shall\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.       If Employer shall terminate  Executive's  employment hereunder\nfor Cause,  or if  Executive  shall  voluntarily  leave  Executive's  employment\nhereunder,  this Agreement shall terminate immediately and Employer shall pay to\nExecutive an amount equal to the Base Salary hereunder  through the date of such\ntermination.  Cause shall mean (i) any  conviction of any crime  (whether or not\ninvolving  Employer)  constituting a felony in the jurisdiction  involved,  (ii)\nengaging in any substantiated  act involving moral turpitude,  (iii) engaging in\nany act which,  in each case,  subjects,  or if generally  known would  subject,\nEmployer  to public  ridicule or  embarrassment,  (iv) gross  misconduct  in the\nperformance of Executive's  duties hereunder,  (v) willful failure or refusal to\nperform such material duties as may be delegated to Executive  commensurate with\nExecutive's position, or (vi) breach of any material provision of this Agreement\nby Executive.\n\n         9.       If  Executive's  employment is terminated by Employer  without\nCause,  this Agreement  shall terminate  immediately,  provided,  however,  that\nEmployer shall be obligated to pay Executive the Base Salary through the date of\nsuch  termination.  In addition,  if termination  occurs any time after four (4)\nmonths in  employment  with the  Company the  Executive  shall be paid an amount\nequal to six (6) months of Base Salary as severance.\n\n         10.      Executive  covenants and agrees with  Employer that  Executive\nwill  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  \n\n                                       3\n\n\n\nExecutive's  duties hereunder,  except as required by law or except if generally\navailable to the public otherwise than through use, communication, disclosure or\ndissemination by Executive) any Confidential Information (as hereinafter defined\nconcerning  the businesses or affairs of Employer or of any of its affiliates or\nsubsidiaries  which  Executive may have acquired in the course of or as incident\nto  Executive's  employment  or prior  dealings with Employer or with any of its\naffiliates 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                  \"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         11.      Executive   acknowledges   that   Executive's   services   and\nresponsibilities are of particular significance to Employer and that Executive's\nposition with Employer has given and will give Executive  close knowledge of its\npolicies and trade  secrets.  Since  Employer is in a creative  and  competitive\nbusiness,  Executive's  continued and exclusive  service to Employer  under this\nAgreement is of a high degree of importance.\n\n                  Executive  covenants and agrees with  Employer that  Executive\nwill not,  during the term of this Agreement and for a period of two years after\nthe termination of Executive's  employment hereunder in any manner,  directly or\nindirectly,  (i) induce or attempt to influence  any present or future  officer,\nemployee,  lessor, lessee,  licensor or licensee of Employer or its \n\n                                       4\n\n\n\nsubsidiaries  or its  affiliates  to leave its  respective  employ or solicit or\ndivert  or  service  any  of the  customers  or  clients  that  Employer  or its\nsubsidiaries  or its  affiliates  has or had in the one (1) year previous to the\ndate 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% of the capital  stock,  be a stockholder of any\ncorporation, or directly or indirectly own, manage, operate, conduct, control or\nparticipate in the ownership, management, operation, conduct, control of, accept\nemployment  with, or be connected in any other manner with,  any business  which\nengages in any direct competitive  activity including,  without limitation,  any\nbusiness  which engages in retail  commerce  conducted  over the Internet in any\nsuch geographic region.\n\n         12.      Executive  acknowledges  that the remedy at law for any breach\nor threatened  breach by Executive of the  covenants  contained in paragraphs 10\nand 11 would be wholly inadequate, and therefore Employer or its subsidiaries or\nits affiliates shall be entitled to preliminary and permanent  injunctive relief\nand specific  performance thereof.  Paragraphs 10 and 11 constitute  independent\nand separable  covenants  that shall be  enforceable  notwithstanding  rights or\nremedies that Employer or its  subsidiaries  or it affiliates may have under any\nother provision of this Agreement,  or otherwise. If any or all of the foregoing\nprovisions of paragraphs 10 and ll are held to be  unenforceable  for any reason\nwhatsoever,  it shall not in any way  invalidate or affect the remainder or this\nAgreement which shall remain in full force and effect.  If the period of time or\ngeographical  areas  specified  in  paragraphs  10 and 11 are  determined  to be\nunreasonable  in any  judicial  proceeding,  the  period  of  time or  areas  of\nrestriction  shall be reduced so that this  Agreement  may be  enforced  in such\nareas and during such period of time as shall be determined to be reasonable.\n\n         13.      Executive has carefully  read and  considered  the  provisions\nhereof, and having done so, agrees that restrictions set forth in paragraphs 10,\n11, and 12 (including, but not limited to, the time periods of restrictions) are\nfair and  reasonable  and are  reasonably  required  for the  protection  of the\ninterests of Employer.\n\n         14.      Executive  represents  and warrants to Employer that Executive\nis not now under any  obligation of a contractual or other nature to any person,\nfirm or corporation which is inconsistent or in conflict with this Agreement, or\nwhich would prevent,  limit or impair in any way the execution of this Agreement\nor the  performance  by  Executive  of  Executive's  obligations  hereunder  and\nExecutive will indemnify and hold harmless Employer, its directors, officers and\nemployees  against and in respect of all  liability,  loss,  damage,  expense or\ndeficiency  resulting from any  misrepresentation,  or breach of any warranty or\nagreement made by Executive in connection with Executive's employment hereunder.\n\n         15.      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                                       5\n\n\n\n\n         16.      Any and all notices  referred to herein shall be sufficient if\nfurnished 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\n\nTo Executive:                                  To Employer:\n\nFrancis O'Conner                               CyberShop International, Inc.\n7511 Hampshire Drive North East                130 Madison Avenue\nCedar Rapids, Iowa  52402                      New York, New York  10016\n                                               Attention:  Chairman of the Board\n\n\nWith copies in each case to:\n\n                                                    RubinBaum Levin  Constant\n                                                     &amp; Friedman\n                                                    30  Rockefeller Plaza\n                                                    New York,  New York  10112\n                                                    Attention: Walter M. Epstein\n\n         17.      This  Agreement  shall be binding upon, and shall inure to the\nbenefit  of,  Employer  and  its  successors  and  assigns,  and  Executive  and\nExecutive's legal representatives, heirs, legatees and distributees, but neither\nthis  Agreement  nor any rights here under shall be  assignable,  encumbered  or\npledged by Executive.\n\n         18.      This  Agreement  supersedes  any and all prior written or oral\nagreements  between  Employer and Executive and constitutes the entire agreement\nbetween the  parties  hereto with  respect to the subject  matter  hereof and no\nmodification,  amendment or waiver of any of the  provisions  of this  Agreement\nshall be effective unless in writing and signed by both parties hereto.\n\n         19.      This  Agreement  shall be construed and enforced in accordance\nwith the laws of the State of New York.\n\n         20.      This Agreement may be executed in any number of counter parts,\neach of which shall be an original,  but all of which together shall  constitute\none and the same agreement.\n\n         21.      If any provision or part of any provision of this Agreement is\nheld for any reason to be  unenforceable,  the remainder of this Agreement shall\nnevertheless remain in full force and effect.\n\n                                       6\n\n\n\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\n\n                                                   CYBERSHOP INTERNATIONAL, INC.\n\n\n\n                                                   By:\n                                                      --------------------------\n                                                       Title:\n\n                                                   Date:\n\n\n\n                                                   -----------------------------\n                                                   Francis O'Connor\n\n                                                   Date:\n\n                                       7\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-39050","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\/39050","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=39050"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39050"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39050"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39050"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}