{"id":39051,"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-gary.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-cybershop-international-inc-and-gary","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-cybershop-international-inc-and-gary.html","title":{"rendered":"Employment Agreement &#8211; CyberShop International Inc. and Gary Finkel"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\nAGREEMENT (\"Agreement\") made as of this 21st day of January 1998 (the \"Effective\nDate\"), by and between  CyberShop  International,  Inc., a Delaware  corporation\n(hereinafter \"Employer\"), and Gary Finkel (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 of\nEmployer; and\n\nWHEREAS, Executive wishes to be so employed;\n\nNOW, THEREFORE,  in consideration of the mutual covenants hereinafter set forth,\nthe parties hereto agree as follows:\n\n1.  Commencing  as of the Effective  Date,  Employer  employs  Executive as Vice\nPresident,  Chief  Financial  Officer and  Treasurer  of Employer to perform the\nduties normally incident to such positions.  Executive shall at all times report\nto the President of Employer.\n\n2. Executive agrees to devote all of Executive's business time, efforts,  skills\nand  attention  to fulfill  Executive's  duties and  responsibilities  hereunder\nfaithfully, diligently and competently.\n\n3. The term of this  Agreement  shall  commence on the Effective  Date and shall\nterminate  one (1) year  thereafter,  unless sooner  terminated  as  hereinafter\nprovided,  and shall be subject to automatic annual renewal thereafter unless at\nleast sixty (60)\n\n\n\n\n\n\n\ndays prior to the end of the term of this Agreement or any annual renewal period\nExecutive or Employer shall give written notice to the other that this Agreement\nshall not be renewed.\n\n4.  Employer  shall pay to  Executive  as  compensation  for all  services to be\nrendered by Executive hereunder the following:\n\n(a) A salary at the rate of One Hundred Twenty Thousand and 00\/100 ($120,000.00)\nDollars per annum.  In the event that an initial  public  offering of Employer's\nsecurities (the \"Public  Offering\") is consummated,  Executive's salary shall be\nincreased to the rate of One Hundred  Forty  Thousand  and 00\/100  ($140,000.00)\nDollars per annum commencing on the date of consummation of the Public Offering.\nSuch salary is hereinafter referred to as the Base Salary.\n\n(b) Executive shall be eligible for bonuses, at such time and in such amounts as\nshall be determined at the  discretion  of  Employer's  Board of Directors  (the\n\"Board) based on its assessment of Executive's performance of Executive's duties\nand on the financial performance of Employer.\n\n(c) Employer will  reimburse  Executive for all  reasonable  travel and business\nexpenses incurred by Executive in connection with Executive's services hereunder\nin accordance  with the usual  practices and policies of Employer in effect from\ntime to time, upon presentation of vouchers.\n\n(d) Employer will make available to Executive health benefits  currently offered\nor  during  the  term of this  Agreement  are\n\n                                      -2-\n\n\n\n\n\noffered to other executives of Employer. In addition, Executive will be eligible\nfor and will be offered participation in any and all group insurance,  hospital,\ndental,  major medical and  disability  benefits and stock option plans or other\nsimilar fringe  benefits which are currently  offered or during the term of this\nAgreement are offered to other executives of Employer.\n\n5. Subject to the adoption of Employer's  1998 Stock Option Plan (the \"Plan\") by\nthe Board,  to the approval of the Plan by  Employer's  stockholders  and to the\napproval of the grant of options to Executive by the Board,  Executive  shall be\ngranted  an option or  options  (the  \"Option\")  to  purchase  65,000  shares of\nEmployer's  common  stock,  $.001 par value per share (the \"Common  stock\") from\nEmployer at an  exercise  price of $5.00 per share,  provided  that in the event\nthat the price per share of Common  Stock  sold in the Public  Offering  is less\nthan $5.00,  the Board shall grant an additional  number of options to Executive\nso that the  product of the total  number of options  granted  and the  exercise\nprice per share of Common Stock sold in the Public Offering is equal to 325,000,\nthe product of the 65,000 options and the $5.00 per share exercise price. In the\nevent that the Public  Offering is not  consummated on or prior to May 15, 1998,\nthe options granted pursuant to this Section 5 shall be canceled and new options\nshall be granted to  Executive to purchase  65,000  shares of Common Stock at an\nexercise  price per share equal to the fair market  value of the Common Stock on\nthe May 15th 1998, as determined by the Board in its sole discretion. The Option\nshall vest and be exercisable as follows:  (i) 1\/3 of the shares of\n\n                                      -3-\n\n\n\n\n\nCommon Stock  subject to the Option on the first  anniversary  of the  Effective\nDate, (ii) 1\/3 of the shares of Common Stock subject to the Option on the second\nanniversary  of the Effective  Date, and (iii) 1\/3 of the shares of Common Stock\nsubject to the Option on the third anniversary of the Effective Date, subject to\ntermination as provided in the Plan,  and further  subject to termination in the\nevent that (x) Executive  breaches any term hereof,  (y) Executive's  employment\nhereunder is  terminated  for Cause (as  hereinafter  defined) or is  terminated\nwithout Cause, or (z) Executive voluntarily  terminates  Executive's  employment\nhereunder.  The Option shall expire five (5) years from the date of vesting. The\nterms of the Option  shall  otherwise  be governed  by the Plan,  as well as the\napplicable  option  agreement  to be entered  into  pursuant to the terms of the\nPlan.\n\n6. In the event of  Executive's  death during the term of this  Agreement,  this\nAgreement shall terminate immediately, provided, however, that Executive's legal\nrepresentatives  shall be  entitled  to  receive  the Base  Salary  which  would\notherwise  have been due Executive had he worked through the end of the month in\nwhich Executive died.\n\n7. If  during  the  term of this  Agreement,  Executive  is  unable  to  perform\nExecutive's duties hereunder on account of illness or other incapacity, and such\nillness or other  incapacity  shall continue for a period of more than three (3)\nconsecutive  months during any twelve (12) month period  Employer shall have the\nright,  on thirty  (30) days'  notice to  Executive,  given after such three (3)\nmonth period, to terminate this Agreement. In the\n\n                                      -4-\n\n\n\n\n\nevent of any such  termination  Employer  shall be obligated to pay to Executive\nthe Base Salary which would  otherwise be due Executive  until the expiration of\nthe month of  employment  during which the  termination  occurred plus three (3)\nadditional  months  of the  Base  Salary  for the year in  which  Executive  was\nterminated.  If, prior to the date specified on such notice, Executive's illness\nor  incapacity  shall  have  terminated  and  Executive  shall have taken up the\nperformance 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 determine in good faith,  upon  consideration of medical\nevidence  satisfactory to it, whether  Executive by reason of physical or mental\ndisability  shall be  unable to  perform  the  services  required  of  Executive\nhereunder.\n\n8. If Employer shall terminate Executive's employment hereunder for Cause, or if\nExecutive  shall  voluntarily  leave  Executive's  employment  hereunder,   this\nAgreement  shall  terminate  immediately  and Employer shall pay to Executive an\namount equal to the Base Salary hereunder  through the date of such termination.\nCause  shall mean (i) any  conviction  of any crime  (whether  or not  involving\nEmployer) constituting a felony in the jurisdiction  involved,  (ii) engaging in\nany  substantiated  act involving  moral  turpitude,  (iii)  engaging in any act\nwhich, in each case, subjects, or if generally known would subject,  Employer to\npublic ridicule or  embarrassment,  (iv) gross  misconduct in the performance of\nExecutive's  duties  hereunder,  (v) willful  failure or refusal to perform such\nduties as may be relegated to \n\n                                      -5-\n\n\n\n\n\nExecutive  commensurate  with  Executive's  position,  or  (vi)  breach  of  any\nprovision of this Agreement by Executive.\n\n9. If  Executive's  employment  is terminated by Employer  without  Cause,  this\nAgreement shall terminate immediately, provided, however, that Employer shall be\nobligated to pay Executive the Base Salary through the date of such termination.\nIn addition if  termination  occurs  during the first twelve (12) months of this\nAgreement the Executive  shall be paid an amount equal to six (6) months of Base\nSalary as severance.\n\n10. Executive covenants and agrees with Employer that Executive will not, during\nthe  term  of  this  Agreement  and  thereafter   directly  or  indirectly  use,\ncommunicate,  disclose or disseminate to anyone (except to the extent reasonably\nnecessary  for  Executive to perform  Executive's  duties  hereunder,  except as\nrequired by law or except if generally  available to the public  otherwise  than\nthrough use,  communication,  disclosure  or  dissemination  by  Executive)  any\nConfidential  Information (as hereinafter  defined) concerning the businesses or\naffairs of Employer or of any of its affiliates or subsidiaries  which Executive\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,  information  and\nmaterial  concerning  Employer  or its  business  or the  business of any of its\naffiliates or subsidiaries that shall become known to Executive as a consequence\nof Executive's \n\n                                      -6-\n\n\n\n\n\nrelationship  with  Employer,  (b) all  information  that has been  disclosed to\nEmployer by any third party under an agreement or  circumstances  requiring such\ninformation  to be kept  confidential,  and (c) all  knowledge,  information  or\nmaterial concerning Inventions that are, under this Agreement, owned by Employer\nor assigned by Executive to Employer;  provided,  that Confidential  Information\nshall  not  include  knowledge,  information  or  material  that  is or  becomes\ngenerally  known or available to others in businesses  engaged in by Employer or\nto  the  public  (other  than  through  unauthorized  disclosure).  Confidential\nInformation  shall include  without  limitation  (a)  information of a technical\nnature,  such as  information  regarding  past,  present  and  future  research,\nfinancial data, product information, marketing plans, computer programs (whether\nin source or object  code form or other form and  whether  contained  on program\nlistings,  magnetic tape,  magnetic disks, CD ROMs or other media),  logic, flow\ncharts,  specifications,  documentation  and ideas relating to the activities of\nEmployer,  (b) information of a business nature,  such as information  regarding\npast,   present  and  future   client   development,   strategies,   procurement\nspecifications,  cost and financial  data,  contracts,  quotations  and names of\nactual and prospective  clients or customers,  and (c) all documents,  drawings,\nreports, client lists, and other physical embodiments of all such information.\n\n\"Inventions\"  shall  mean each of the  following,  but only to the  extent  they\nrelate to the business of commerce conducted over the Internet:  all inventions,\ndiscoveries,  developments,  ideas,\n\n                                      -7-\n\n\n\n\n\nworks, improvements,  enhancements,  works of authorship,  products and computer\nsoftware,  whether or not  patentable,  and anything  else that is subject to or\npotentially  subject  to the  patent,  copyright  or  trade  secret  laws of any\njurisdiction.\n\n11. Executive acknowledges that Executive's services and responsibilities are of\nparticular  significance to Employer and that Executive's position with Employer\nhas given and will give  Executive  close  knowledge  of its  policies and trade\nsecrets.  Since Employer is in a creative and competitive business,  Executive's\ncontinued and exclusive  service to Employer  under this  Agreement is of a high\ndegree of importance.\n\nExecutive covenants and agrees with Employer that Executive will not, during the\nterm of this  Agreement and for a period of two years after the  termination  of\nExecutive's  employment  hereunder in any manner,  directly or  indirectly,  (i)\ninduce or attempt to influence any present or future officer,  employee, lessor,\nlessee,  licensor or licensee of Employer or its  subsidiaries or its affiliates\nto leave its  respective  employ or  solicit  or  divert or  service  any of the\ncustomers or clients that Employer or its  subsidiaries or its affiliates has or\nhad in the one (1) year previous to the date of termination  of this  Agreement,\n(ii) engage,  in North America or any other  territory in which Employer does or\ncontemplates  to do business,  in any businesses  presently  engaged in or to be\nengaged in by Employer or its subsidiaries or affiliates during the term of this\nAgreement,  and (iii)  except for  ownership  of no more than 1% of the  capital\nstock,  be a stockholder  of any  corporation,  or directly or  indirectly  own,\n\n                                      -8-\n\n\n\n\n\nmanage, operate,  conduct, control or participate in the ownership,  management,\noperation,  conduct,  control of, accept employment with, or be connected in any\nother manner with, any business which engages in any direct competitive activity\nincluding,  without  limitation,  any business which engages in retail  commerce\nconducted over the Internet in any such geographic region.\n\n12. Executive  acknowledges  that the remedy at law for any breach or threatened\nbreach by Executive of the covenants  contained in paragraphs 10 and 11 would be\nwholly inadequate,  and therefore Employer or its subsidiaries or its affiliates\nshall be entitled to preliminary  and permanent  injunctive  relief and specific\nperformance thereof.  Paragraphs 10 and 11 constitute  independent and separable\ncovenants  that shall be  enforceable  notwithstanding  rights or remedies  that\nEmployer or its subsidiaries or it affiliates may have under any other provision\nof this Agreement,  or otherwise.  If any or all of the foregoing  provisions of\nparagraphs 10 and 11 are held to be unenforceable for any reason whatsoever,  it\nshall not in any way invalidate or affect the remainder or this Agreement  which\nshall  remain in full force and  effect.  If the period of time or  geographical\nareas specified in paragraphs 10 and 11 are determined to be unreasonable in any\njudicial proceeding, the period of time or areas of restriction shall be reduced\nso that this  Agreement  may be enforced in such areas and during such period of\ntime as shall be determined to be reasonable.\n\n                                      -9-\n\n\n\n\n\n13.  Executive has carefully  read and considered  the  provisions  hereof,  and\nhaving done so, agrees that  restrictions set forth in paragraphs 10, 11, and 12\n(including,  but not limited to, the time periods of restrictions)  are fair and\nreasonable  and are  reasonably  required for the protection of the interests of\nEmployer.\n\n14.  Executive  represents  and warrants to Employer  that  Executive is not now\nunder any  obligation  of a contractual  or other nature to any person,  firm or\ncorporation  which is inconsistent or in conflict with this Agreement,  or which\nwould prevent, limit or impair in any way the execution of this Agreement or the\nperformance by Executive of Executive's obligations hereunder and Executive will\nindemnify  and hold harmless  Employer,  its  directors,  officers and employees\nagainst and in respect of all  liability,  loss,  damage,  expense or deficiency\nresulting  from any  misrepresentation,  or breach of any  warranty or agreement\nmade by Executive in connection with Executive's employment hereunder.\n\n15. The waiver by either party of a breach of any  provision  of this  Agreement\nshall  not  operate  as or be  construed  as a waiver of any  subsequent  breach\nthereof.\n\n16. Any and all notices  referred to herein shall be  sufficient if furnished in\nwriting and sent by certified mail, return receipt requested,  to the respective\nparties at the addresses set forth below,  or such other address as either party\nmay from time to time designate in writing.\n\n                                      -10-\n\n\n\n\n\nTo Executive:                       To Employer:\n\n\n\nGary Finkel                         CyberShop International, Inc.\n8 Treeview Circle                   130 Madison Avenue\nScotch Plains, New Jersey           New York, New York 10016\n07076                               Attention: Chairman of the Board\n\n\nWith copies in each case to:\n\nRubin Baum Levin Constant &amp; Friedman\n30 Rockefeller Plaza\nNew York, New York  10112\nAttention:  Walter M. Epstein\n\n\n17. This  Agreement  shall be binding  upon,  and shall inure to the benefit of,\nEmployer and its successors  and assigns,  and Executive and  Executive's  legal\nrepresentatives,  heirs,  legatees and distributees,  but neither this Agreement\nnor  any  rights  hereunder  shall  be  assignable,  encumbered  or  pledged  by\nExecutive.\n\n18.  This  Agreement  supersedes  any and all prior  written or oral  agreements\nbetween Employer and Executive and constitutes the entire agreement  between the\nparties  hereto with respect to the subject  matter hereof and no  modification,\namendment  or  waiver  of any of the  provisions  of  this  Agreement  shall  be\neffective unless in writing and signed by both parties hereto.\n\n19. This Agreement  shall be construed and enforced in accordance  with the laws\nof the State of New York.\n\n                                      -11-\n\n\n\n\n\n20. This Agreement may be executed in any number of counterparts,  each of which\nshall be an original,  but all of which  together  shall  constitute one and the\nsame agreement.\n\n21. If any provision or part of any provision of this  Agreement is held for any\nreason to be unenforceable,  the remainder of this Agreement shall  nevertheless\nremain in full force and effect.\n\nIN WITNESS  WHEREOF,  the parties  hereto have caused this  Agreement to be duly\nexecuted as of the day and year first above written.\n\nCYBERSHOP INTERNATIONAL, INC.\n\n\n\nBy:\n   ------------------------\n\nTitle:\n\nDate:\n\n\n---------------------------\nGary Finkel\n\nDate:\n\n\n\n                                      -12-\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-39051","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\/39051","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=39051"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39051"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39051"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}