{"id":39278,"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-intellesale-com-inc-and-marc-sherman.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-intellesale-com-inc-and-marc-sherman","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-intellesale-com-inc-and-marc-sherman.html","title":{"rendered":"Employment Agreement &#8211; Intellesale.com Inc. and Marc Sherman"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n         THIS  AGREEMENT  (\"Agreement\")  made and entered  into this 17th day of\nJune,  1999,  by and  between  INTELLESALE.COM,  INC.,  a  Delaware  corporation\n(\"Company\") and MARC SHERMAN (\"Employee\").\n\n         BACKGROUND\n\n         Employee is employed by Company as its  president  and chief  executive\nofficer. The parties desire to enter into a formal employment agreement covering\nthe terms and conditions of such employment.\n\n         TERMS AND CONDITIONS\n\n         Employment.  Company  hereby  employs  Employee,  and  Employee  hereby\naccepts such employment by Company, on the terms and conditions set forth below.\n\n         Capacity.  Employee  shall  serve  as  Company's  president  and  chief\nexecutive officer. Employee shall perform such services for Company as Company's\nboard of directors  (\"Board\") shall direct from time to time.  However,  no such\nservices  shall be of a nature  which  are not  commensurate  with,  and\/or  are\nbeneath the dignity of, Employee's  position  described in the first sentence of\nthis paragraph or are not of an executive or managerial nature.\n\n         Term.  Company's  employment of Employee under this Agreement  shall be\nfor an initial term of five years  commencing on July 1, 1999 and ending on June\n30,  2004.  The  term  of  Employee's  employment  under  this  Agreement  shall\nautomatically  be  renewed  for  successive  additional  one year  terms on each\nanniversary of the  commencement of Employee's  employment under this Agreement,\nbeginning with the July 1, 2000  anniversary  date, each of which terms shall be\nadded at the end of the then  existing  term  (taking  into  account  any  prior\nextensions  or failures to extend),  unless  either party  notifies the other at\nleast 30 days prior to an anniversary  date of this Agreement that he or it does\nnot  desire  the  additional  one  year  term  to be  added  to the  term of the\nAgreement.  For example,  unless either party notifies the other to the contrary\non or before June 1, 2000,  the term of this  Agreement  shall be extended  from\nJuly 1, 2004 to June 30,  2005.  For further  example,  and assuming the term of\nthis  Agreement has been  extended to June 30, 2005,  if one party  notifies the\nother  that it does not  desire  to  extend  the term of this  Agreement  for an\nadditional  year and such notice is given on or before June 1, 2001, the term of\nthis  Agreement  shall  not be  extended  from  July 1,  2005  to Jun 30,  2006.\nNotwithstanding  the foregoing,  the term of this Agreement may end prior to the\ntermination  date determined under this paragraph 3 as provided in paragraphs 9,\n10, 11 and 12.\n\n         Service While Employed. Employee agrees to devote his best efforts, his\nfull  diligence  and  substantially  all  of his  business  time  to his  duties\nhereunder and shall not engage,  either directly or indirectly,  in any business\nor other activity  which is competitive  with or adverse to the interests or the\nbusiness of Company.\n\n\n\n\n         Items  Furnished and  Relocation.  Company shall furnish  Employee with\nsuch  private  office,   secretarial  assistance,  and  such  other  facilities,\nequipment  and  services  suitable to his  position  and adequate to perform his\nduties  hereunder.  Employee  shall not be  relocated  by  Company  without  his\nconsent.\n\n         Compensation,  Vacations and Reimbursement. As partial compensation for\nhis  services to Company,  Company  agrees to pay  Employee an annual  salary in\nregular monthly or other agreed upon  installments of not less than  $400,000.00\nand an annual bonus computed in accordance  with Exhibit A which is attached and\nis a part of this Agreement. In addition,  Employee shall be entitled to receive\nsuch  bonuses  (in  addition to that  required  under the  preceding  sentence),\nincentive compensation, and other compensation, if any, as the Board , executive\ncommittee,  compensation  committee,  or other designated  committee shall award\nEmployee from time to time whether in cash, Company stock, stock options,  other\nstock based compensation,  other form of remuneration, or any combination of the\nforegoing. All such compensation shall be subject to legally required income and\nemployment  tax  withholding.  Employee  shall be entitled to paid vacations and\nreimbursement for all reasonable  business expenses in accordance with Company's\npolicies for executive officers.\n\n         Pension,  Welfare and Related Benefits. In addition to the compensation\ndescribed in paragraph 6 above,  Employee  shall be entitled to  participate  in\nsuch bonus, profit sharing,  deferred  compensation and pension plans of Company\nfor which he is eligible and such welfare and fringe benefits plans and programs\nof the Company for which he is eligible.\n\n         Other Benefits;  Loan.  Company shall pay employee the sum of $5,000.00\nper month to be used by Employee for such personal,  business,  financial, club,\nautomobile or other  expenses as he, in his sole  discretion,  shall  determine.\nSuch  amount  shall be in  addition to any  reimbursement  to which  Employee is\nentitled under  paragraph 6. In addition,  at such time that Employee closes the\npurchase of a new principal or secondary residence (\"Residence\"),  Company shall\nloan Employee the sum of  $1,250,000.00 to be applied against the purchase price\nof the Residence and closing  costs.  Such loan shall be secured by a first lien\non the Residence,  be of a 30 year duration (or such shorter duration  requested\nby Employee),  be amortized  through equal monthly payments over the term of the\nloan, bear an interest rate equal to the applicable  federal rate (as defined in\nSection  1274(d) of the Internal  Revenue Code of 1986, as amended  (\"Code\") for\nloans of similar duration and payment  schedules,  and permit prepayment without\npenalty.  The note evidencing the loan and mortgage or other security instrument\nshall contain terms and conditions  customarily  included in residential secured\nloans in the metropolitan area in which the Residence is located.\n\n         Death  and  Disability.  If  Employee  dies  during  the  term  of this\nAgreement, his employment shall be deemed to have been terminated as of the last\nday of the month in which his death  occurs,  and Company will pay to Employee's\npersonal  representative  all salary  and any other  compensation  due  Employee\nthrough the end of such month. If Employee becomes permanently  disabled so that\nhe cannot  perform  his duties , as  determined  by a  physician  selected by or\nacceptable to Company, his employment shall be deemed to have been terminated as\n\n                                       2\n\n\nof the last day of the month in which such  determination  is made,  and he will\nreceive  his salary and any other  compensation  due him through the end of such\nmonth.\n\n         Termination Upon Retirement or Notice. From and after the time Employee\nattains age 65, he may retire at any time by notifying Company at least 120 days\nprior to his intended retirement date or be retired by Company upon at least two\nyears notice.  In addition,  Employee may  terminate his  employment at any time\nafter June 30, 2001, upon one year's notice. If a notice of termination has been\ngiven under this  paragraph 10, and the  Agreement is  terminated  under another\nprovision if this Agreement,  such as by death (\"Other  Termination  Provision\")\nprior  to the  date of such  termination  under  this  paragraph  10,  then  the\nAgreement  shall  be  deemed  to have  been  terminated  pursuant  to the  Other\nTermination Provision.\n\n         Default.  In the event that  either  party  fails to  perform  material\nprovision  of this  Agreement  and  such  failure  continues  for 15 days  after\nnotification from the nonbreaching  party, the nonbreaching  party may terminate\nthis  Agreement by notice to the  breaching  party.  Such  termination  shall be\nwithout  prejudice to any rights or remedies  which the  nonbreaching  party may\nhave.\n\n         Change  in  Control.   Notwithstanding  any  other  provision  of  this\nAgreement,  should a \"change of control\" occur, Employee, at his sole option and\ndiscretion, may terminate his employment under this Agreement at any time within\none year after such change of control upon 15 days notice.  In the event of such\ntermination,  Company  shall pay to  Employee a  severance  payment  (\"Severance\nPayment\") equal to three times the base amount as defined in Section  280G(b)(3)\nof the Code minus $1.00.  Notwithstanding  the  foregoing,  (a) if the Severance\nPayment  and any other  amounts  payable by Company to  Employee  are  parachute\npayments under Code Section 280G (collectively,  \"Parachute Payments\") and, (b),\nif reducing the Severance  Payment would  eliminate the tax provided for in Code\nSection 4999  (\"Section  4999 Tax\") which would  otherwise be  applicable to the\nParachute Payments,  and (c) if, because of such elimination,  the net amount of\nthe Parachute  Payments (total payments minus Section 4999 Tax) would be greater\nthan such net amount  without  reduction,  then the  Severance  Payment shall be\nreduced by the smallest  amount  required to  eliminate  the  imposition  of the\nSection 4999 Tax. The foregoing determination shall be made by Company's general\ncounsel,  and his determination shall be binding upon Company and Employee.  The\namount  determined under the foregoing  provisions of this paragraph 12 shall be\npayable  no later  than one month  after the  effective  date of the  Employee's\ntermination of employment. A change in control means: (a) the acquisition by any\nperson or entity, other than Company or a \"related entity,\" of (i) more than 20%\nwithout the approval of the Board or (ii) more than 50% with the approval of the\nBoard of the  outstanding  shares of Company's  voting stock on a diluted and\/or\nconverted  basis through a tender offer,  exchange  offer or otherwise;  (b) the\nsale or other disposition of all or substantially all of Company's assets unless\nshareholders  of Company prior to such sale or  disposition  own at least 50% of\nthe voting stock on a diluted and\/or  converted basis of the purchaser,  and the\npurchaser  assumes Company's  obligations under this Agreement;  (c) a merger of\nconsolidation involving Company which results in Company not being the surviving\nparent  corporation or after which shareholders of the Company own less than 50%\nof the voting stock on a diluted and\/or converted basis of the surviving entity;\nor (d) any time during any two-year period in which  individuals who constituted\n\n                                       3\n\n\nthe Board at the start of such period (or,  except in the case of a  transaction\ndescribed in a(i) or (c), whose election was approved by at least  two-thirds of\nthe then  members  of the Board who were  members  at the start of the  two-year\nperiod) do not  constitute  at least 50% of the Board for any reason.  A related\nentity is the parent,  a subsidiary  or any employee  benefit plan  (including a\ntrust  forming a part of such a plan)  maintained  by  Company,  its parent or a\nsubsidiary.  Notwithstanding  the  foregoing,  any  changes  in stock  ownership\nresulting from the initial public offering of the Company's shares ((\"IPO\") or a\nchange in the Board within two years of the IPO and  resulting  from a change in\nstock ownership effected by the IPO shall not be considered a change of control.\n\n         Nondisclosure;   Return  of  Records.  Employee  will  not,  except  as\nauthorized  by  Company,  publish  or  disclose  to  others,  or use for his own\nbenefit, or authorize anyone else to publish or disclose or use, or copy or make\nnotes of any secret,  proprietary,  or confidential  information or knowledge of\ndata or trade secrets of or relating to the business activities of Company which\nmay come to Employee's  knowledge  during his employment with the Company.  Upon\ntermination of Employee's  employment  for any reason,  Employee will deliver to\nCompany,  without retaining any copies, notes or excerpts,  all records,  notes,\ndata,  memoranda,  and all other  documents  or  materials  made or  compiled by\nEmployee,  or made available to him by Company during his employment,  which are\nin Employee's  possession  and\/or  control and which are the property of Company\nand\/or which relate to  Employee's  employment  or the  business  activities  of\nCompany.\n\n         Binding  Effect.  This Agreement shall be binding upon and inure to the\nbenefit of Company and any successors or assigns of Company,  and Employee,  his\nheirs, personal  representatives and assigns, except that Employee's obligations\nto  perform   services  and  rights  to  receive  payment   therefore  shall  be\nnonassignable and nontransferable.\n\n         Entire Agreement:  Modification.  This Agreement constitutes the entire\nagreement  between the parties with respect to the subject matter and supersedes\nall prior or  contemporaneous  agreements not set forth in this agreement.  This\nAgreement  may not be modified  other than by an agreement in writing  signed by\neach of the parties.\n\n         Waiver.  Any failure by either  party to enforce any  provision of this\nAgreement  shall  not  operate  as a  waiver  of  such  provision  or any  other\nprovision.  Any waiver by either  party of any breach of any  provision  of this\nAgreement shall not operate as a waiver of any other breach of such provision or\nany other provision of this agreement.\n\n         Severability.  The  invalidity or  unenforceability  of any  particular\nprovision  of this  Agreement  shall not  effect  the other  provisions  of this\nAgreement,  and this  Agreement  shall be  construed  in all respects as if such\ninvalid or unenforceable provision were omitted.\n\n         Paragraph  Headings.  Paragraph headings  throughout this Agreement are\nsolely for the  convenience  of the parties and shall not be construed as a part\nof any section or as modifying the contents of any section.\n\n                                       4\n\n\n         Governing  Law.  This  Agreement  shall be governed  and  construed  in\naccordance with the laws of the State of Delaware.\n\n         Notices.   All  notices  under  this  Agreement   shall  be  personally\ndelivered,  sent certified mail,  postage  prepaid,  to Company at its corporate\noffice and to Employee at his principal residence, or sent by telecopy.\n\n         Supplemental Compensation. Except as otherwise provides below, upon the\ntermination of Employee's employment with Company for any reason, other than due\nto his  breach  of a  material  provision  of his  employment  as  described  in\nparagraph  11,  Employee  shall be  entitled  to receive  from  Company 36 equal\nmonthly payments, with the first such payment due on the second first day of the\nmonth after termination of employment, of 8.333% of Employee's compensation over\nthe 12-consecutive month period for which his compensation was the greatest.  If\nEmployee  should  die  before  all or any part of the  above  described  monthly\npayments have been made, all payments or all remaining payments shall be made to\nhis  designated  beneficiary,  if any,  otherwise to his estate.  The  aggregate\namount  payable under this paragraph 21 shall be reduced (but not below zero) by\nthe amount,  if any,  payable under  paragraph 12, and such reduced amount shall\nalso be payable in 36 equal monthly installments. Notwithstanding the foregoing,\nif  Employee  terminates  his  employment  pursuant  to the second  sentence  of\nparagraph 10, the amount  payable  under this  paragraph 21, shall be 50% of the\namount that would otherwise be payable.\n\n         Non-Competition.  For a three year period from and after termination of\nEmployee's  employment  for any reason  other  than  death,  Employee  shall not\nengage,  directly  or  indirectly,  either on his own behalf or on behalf of any\nother person,  firm,  corporation or other entity,  in any business  competitive\nwith the  business  of  Company,  in the  geographic  area in which  Company  is\nconducting business at the time of termination of Employee's employment,  or own\nmore  than 5% of any such  firm,  corporation  or  other  entity.  In  addition,\nEmployee must furnish  Company with such  information as Company shall from time\nto time request in order to determine  that Employee is in  compliance  with the\nrequirements  of the preceding  provisions of this paragraph 22. The payments to\nbe made under  paragraph 21 are conditioned  upon Employee's  complying with the\nprovisions  of this  paragraph  22. In the event  that such  provisions  are not\ncomplied with,  then, in addition to all other rights and remedies which Company\nmay have ( and which Employee agrees shall include  equitable  relief),  Company\nmay suspend  such  payments  for any period of time in which  Employee is not in\ncompliance  with the preceding  provisions of this paragraph 22. Employee agrees\nthat the  restrictions  of this  paragraph  22 are  reasonable  and  required to\nprotect the legitimate business interests of Company.\n\n         Modification.  In the event that any  provision  of this  Agreement  is\ninvalid or  unenforceable,  it shall be  modified  to the extent  required to be\nvalid and enforceable and only to such extent. If it cannot be so modified, then\nit shall be deemed to have been deleted from this  Agreement  but such  deletion\nshall not affect the remaining terms and provisions of this Agreement.\n\n                                       5\n\n\n         Company.  For purposes of paragraphs  4, 13, and 22 of this  Agreement,\nthe Company means  Intellesale.com,  Inc. and all subsidiaries and affiliates of\nit.\n\n         IN WITNESS WHEREOF,  the parties have executed this Agreement as of the\ndate first above written.\n\n                                            INTELLESALE.COM, INC.\n                                            \"Company\"\n\n\n                                             By: \/s\/ Michael Krawitz\n                                                 -------------------------------\n                                                  Title: Vice President\n\n\n\n                                              \/s\/ Marc Sherman\n                                             -----------------------------------\n                                             Marc Sherman\n                                             \"Employee\"\n\n\n                                       6\n\n\n\n                                  EXHIBIT A TO\n                              EMPLOYMENT AGREEMENT\n                          BETWEEN INTELLESALE.COM, INC.\n                                AND MARC SHERMAN\n\n\n         A.       Current Annual Bonus Formula.\n\n                  For each fiscal year,  Employee's bonus (if any) shall be 1.0%\nof the consolidated earnings of Company and subsidiaries before interest, taxes,\ndepreciation  and  amortization.  The computation of the bonus, if any, to which\nEmployee is  entitled  shall be made by  Company's  chief  financial  officer in\naccordance with generally accepted accounting  principles  consistently applied.\nAny bonus to which Employee is entitled shall be paid as soon as practicable but\nin no event  later  than the 15th day of the  third  month  after the end of the\nfiscal year for which the bonus was earned.  In the event Employee's  employment\nterminates  prior  to the  end of the  fiscal  year,  Employee  or his  personal\nrepresentative  shall be  entitled  to a pro rata  portion of the bonus for such\nfiscal year unless his employment  was  terminated  pursuant to paragraph 11, in\nwhich event no bonus shall be payable.  Employee's pro rata portion of his bonus\nshall be the same percentage of the bonus as the number of days for which he was\nemployed for such fiscal year is of 365.\n\n         B.       Modified Annual Bonus Formula.\n\n\n                  If Company adopts a bonus plan or program intended to meet the\nrequirements  for \"other  performance-based  compensation\"  under  Code  Section\n162(m) (4) (\"162(m)  Plan\") pursuant to which the bonus, if any, to which one or\nmore of its employees may be  determined,  if the provisions of the 162 (m) Plan\nare  applicable  to Employee,  and if the annual  bonus for  Employee  under the\n162(m) Plan can, in the Company's  good faith belief,  reasonably be expected to\nbe  substantially  similar in amount to that  determined  under A above over the\nremaining term of this  Agreement,  then the provisions of the 162(m) Plan shall\nsupersede and replace the  provisions of A above from and after the first day of\nCompany's fiscal year for which the 162 (m) Plan is effective.\n\n\n\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":[7876],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-39278","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intellesalecom-inc","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\/39278","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=39278"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39278"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39278"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39278"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}