{"id":39634,"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-the-magellan-group-inc-howard-j-kuntz.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-the-magellan-group-inc-howard-j-kuntz","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-the-magellan-group-inc-howard-j-kuntz.html","title":{"rendered":"Employment Agreement &#8211; The Magellan Group Inc., Howard J. Kuntz III and CyberShop International Inc."},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n      AGREEMENT ('Agreement') made as of this 1st day of June, 1999 (the\n'Effective Date'), by and between MG Acquisition Corp., a Delaware corporation\n(hereinafter 'Employer'), and Howard J. Kuntz III (hereinafter 'Executive').\nEmployer is a wholly-owned subsidiary of Cybershop International, Inc. ('CYSP')\nwhich has guaranteed the performance of all obligations of Employer hereunder.\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\n      WHEREAS, Executive wishes to be so employed;\n\n      NOW, THEREFORE, in consideration of the mutual covenants hereinafter set\nforth, the parties hereto agree as follows:\n\n            23. Effective Date and Duties. Commencing as of the Effective Date,\nand throughout the Term, as herein defined, Employer employs Executive as Chief\nOperating Officer to perform the duties normally incident to such position.\nSubject to the approval of the Chairman of the Board of Employer, who initially\nis Jeffrey S. Tauber, during the Term Executive shall have and shall be entitled\nto exercise the complete authority, functions, duties, powers and\nresponsibilities of the Chief Executive Officer of the Employer and in such\ncapacity (i) to engage the services of and to determine the principal terms of\nemployment of, and \n\n\ncompensation payable to the employees of the Employer; (ii) to establish and\nimplement Employer's policies and practices, consistent with an approved budget,\nselection and pricing, choice of advertising media and terms of insertion,\nproduction of advertising illustrations and copy, and ancillary activities\nrelated thereto; (iii) to develop and implement budgets for the operations of\nthe Employer; and (iv) to engage professional services on behalf of the Employer\nincluding legal counsel and accountants.\n\n            24. Responsibilities. Executive agrees to devote all of Executive's\nbusiness time, efforts, skills and attention to fulfill Executive's duties and\nresponsibilities hereunder faithfully and diligently. Notwithstanding the\nforegoing, the Executive shall be permitted to engage in not-for-profit\nactivities which do not interfere with the performance of his duties hereunder.\nIn the event that Ian S. Phillips is no longer a director of CYSP and Executive\nis then employed by Employer, Executive shall be appointed to the Board of CYSP\nto serve so long as he shall remain an employee of Employer.\n\n            25. Term. The term of this Agreement shall commence on the Effective\nDate and shall expire two (2) years thereafter, unless sooner terminated as\nhereinafter provided.\n\n            26. Place of Employment. Executive shall render his services\nhereunder at the principal executive offices of Employer, 137 Rowayton Avenue,\nRowayton, Connecticut, or such other location of Employer within a 20 mile\nradius thereof.\n\n\n            27. Compensation. Employer shall pay to Executive as compensation\nfor all services to be rendered by Executive hereunder the following:\n\n            (a) A salary at the rate of Two Hundred Twenty-Five Thousand\n      ($225,000) Dollars per annum which will be paid during normal pay periods.\n      Such salary is hereinafter referred to as the Base Salary.\n\n            (b) Executive shall be eligible for bonuses consistent with the\n      bonus plans offered to other senior executives of Employer and CYSP, at\n      such time and in such amounts as shall be determined at the discretion of\n      the Board of Directors based on its assessment of Executive's performance\n      of Executive's duties and on the financial performance of Employer.\n\n            (c) Employer will reimburse Executive for all reasonable travel and\n      business expenses incurred by Executive in connection with Executive's\n      services hereunder in accordance with the usual practices and policies of\n      Employer in effect from time to time, upon presentation of vouchers.\n\n            (d) Employer will make available to Executive health benefits as are\n      currently in effect or as modified during the term of this Agreement\n      consistent with the health benefits offered to other senior executives of\n      Employer and CYSP. In addition, Executive will be eligible for and will be\n      offered participation in any and all group insurance, hospital, dental,\n      major medical and disability benefits and stock option plans, 401(k) plan\n      or other fringe benefits which are currently offered or may hereafter be\n      offered to other \n\n\n      senior executives of Employer and CYSP during the term of this Agreement.\n\n            28. Termination on Death. In the event of Executive's death during\nthe term of this Agreement, this Agreement shall terminate immediately,\nprovided, however, that Executive's legal representatives shall be entitled to\nreceive the Base Salary which would otherwise have been due Executive had he\nworked through the end of the month in which Executive died plus (i)\nunreimbursed business expenses, (ii) a portion of the bonus or incentive\ncompensation program then in effect, prorated through the end of the month of\ndeath, (iii) any insurance benefits to which Executive (or his estate) is\nentitled and (iv) all Earnout amounts provided in the Agreement and Plan of\nMerger ('APM') dated the date hereof. Such later payments to be made at the time\nand in the manner set forth in the APM. Such termination on death shall not\naffect any vested benefits which Executive shall have at the time of his death.\n\n            29. 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 an aggregate of more than 90 days during any six (6) month period, Employer\nshall have the right, on thirty (30) days' notice to Executive, given after such\nperiod, to terminate this Agreement. In the event of any such termination\nEmployer shall be obligated to pay to Executive the Base Salary which would\notherwise be due to Executive until the expiration of the month of employment\nduring which the termination occurred plus (i) three (3) additional months of\nthe Base Salary for the three months following the \n\n\nmonth in which Executive was terminated (or such lesser time to the End of the\nTerm), (ii) a portion of the bonus or incentive compensation program then in\neffect, prorated through the end of the month of disability, (iii) any insurance\nbenefits to which Executive is entitled and (iv) all Earnout amounts provided in\nthe APM. Such later payments to be made at the time and in the manner set forth\nin the APM. If, prior to the date specified on such notice, Executive shall have\ntaken up the performance of Executive's duties thereunder, Executive shall be\nentitled to resume Executive's employment hereunder as though such notice had\nnot been given. The Board of Directors (the 'Board') of Employer shall determine\nin good faith, upon consideration of medical evidence satisfactory to it,\nwhether Executive by reason of physical or mental disability shall be unable to\nperform the services required of Executive hereunder. Any dispute as to\ndisability shall be resolved by the decision of a medical doctor designated by\nEmployer and reasonably acceptable to Executive.\n\n            30. Termination for Cause. If Employer shall terminate Executive's\nemployment hereunder for Cause 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 plus unreimbursed expenses. Executive shall\ncontinue to be entitled to receive Earnout Payments under the APM as earned.\nCause shall mean (i) conviction of any crime (whether or not involving Employer\nconstituting a felony in the jurisdiction involved; (ii) gross misconduct in the\nperformance of Executive's duties hereunder which results in demonstrable\nmaterial \n\n\ninjury to Employer; (iii) continuous failure or refusal to perform any material\nobligation of Executive set forth in this agreement (provided that performance\nof such obligation (a) is reasonably capable of being performed by Executive,\n(b) would not result in a violation of law and (c) is not contrary to a written\ndirection of the Board); (iv) material breach of any provision of this Agreement\nby Executive, or (v) the voluntary termination by Executive of his employment,\nTermination for Cause must be effected by written notice delivered to Executive\nwith specific description of the alleged breach. With respect to termination for\nCause based upon Executive's continuous failure or refusal to perform or for his\nmaterial breach, Executive shall have 20 days to cure such breach commencing on\nthe date that such notice thereof is delivered.\n\n            31. Termination by Executive for Good Reason. If one or more of the\nfollowing events occur and is not cured as herein provided ('Good Reason') (i)\nthere is a material decrease in Executive's responsibility or authority or\nExecutive is assigned duties inconsistent with his office and title; (ii)\nExecutive is required to report to anyone other than the Chairman of Employer;\n(iii) there is a reduction in Executive's Base Salary or in any employee benefit\n(unless resulting from an Employer and CYSP-wide reduction affecting fringe\nbenefits of all senior executives); (iv) monies due to Executive under this\nAgreement shall not have been paid when due; or (v) Executive is required to\nrelocate his office beyond a 20 mile radius of the existing office, or (vi)\nEmployer or CYSP shall default making the Earnout payments due under the APM.\nEmployer shall have 20 days after receipt \n\n\nof written notice from Executive of the existence of any event, to cure such\nbreach. If such breach is not so cured, Executive shall have the right to\nterminate the Agreement for Good Reason and Executive shall be entitled to\nreceive, as liquidated damages, Base Compensation through the balance of the\nTerm, payable in accordance with Employer's payroll practices then in effect\nplus continuation (at Employer's expense) through the balance of the Term (and\nwithout prejudice to COBRA rights thereafter) of all fringe benefits including\nlife insurance and medical health plans, unless Executive replaces them at a\ncomparable level at his subsequent employer. Executive shall not be required to\nseek other employment to mitigate damages.\n\n            32. Confidentiality. Executive covenants and agrees with Employer\nthat Executive will not, during the term of this Agreement and thereafter\ndirectly or indirectly use, communicate, disclose or disseminate to anyone\n(except to the extent reasonably necessary for Executive to perform Executive's\nduties hereunder, except as required by law or except if generally available to\nthe public otherwise than through use, communication, disclosure or\ndissemination by Executive) any Confidential Information (as hereinafter\ndefined) concerning the businesses or affairs of Employer which Executive may\nhave acquired in the course of or as incident to Executive's employment or prior\ndealings with Employer.\n\n      'Confidential Information' shall mean (a) all knowledge, information and\nmaterial concerning any of Employer's business or the business of any of its\naffiliates or subsidiaries that shall become known to Executive as a consequence\nof Executive's relationship with Employer, (b) all information that has been\ndisclosed to Employer by any third party under an agreement or circumstances\nrequiring such information to be kept confidential, and (c) all knowledge,\ninformation or material concerning inventions that are, under this Agreement,\nowned by Employer or assigned by Executive to Employer; provided, \n\n\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 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, customer lists (including, without limitation,\nthose relating to the acquired business of Employer), and other physical\nembodiments of all such information. \n\n            33. Non-Competition. Executive acknowledges that Executive's\nservices and responsibilities are of particular significance to Employer and\nthat Executive's position with Employer has given and will give Executive close\nknowledge of Employer's policies and trade secrets.\n\n      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\n            Executive covenants and agrees with Employer that Executive will\nnot, during the term of this Agreement and for a period of twenty-four months\nafter the termination of Executive's employment hereunder, in any manner,\ndirectly or indirectly, (i) induce or attempt to influence any present or future\nofficer, employee, lessor, lessee, licensor or licensee of Employer to leave its\nemployment or solicit or divert or service any of the customers or clients that\nEmployer has or had in the one (1) year previous to the date of termination of\nthis Agreement, (ii) engage, in North America or any other territory in which\nEmployer does business, in any businesses presently engaged in or to be engaged\nin by Employer during the term of this Agreement, and (iii) except for ownership\nof no more than 1% of the capital stock, be a stockholder of any corporation, or\ndirectly or indirectly own, manage, operate, conduct, \n\n\ncontrol or participate in the ownership, management, operation, conduct, control\nof, accept employment with, or be connected in any other manner with, any\nbusiness which engages in any direct competitive activity in any of the product\ncategories in which Employer currently sells or shall sell at any time during\nthe Term in any such geographic region. The non-competition restrictions\ncontinued in this paragraph 11 shall also apply to any activities of CYSP in\nwhich Executive engages on behalf of Employer or CYSP. Notwithstanding the\nforegoing if Executive is terminated without cause or terminates his employment\nfor Good Reason, the non-competition provisions contained in this paragraph 11\nshall terminate as of the effective date of such termination.\n\n            34. Remedies. Executive acknowledges that the remedy at law for any\nbreach or threatened breach by Executive of the covenants contained in\nparagraphs 10 and 11 would be wholly inadequate, and therefore Employer shall be\nentitled to preliminary and permanent injunctive relief and specific performance\nthereof. Paragraphs 10 and 11 constitute independent and separable covenants\nthat shall be enforceable notwithstanding rights or remedies that Employer may\nhave under any other provision of this Agreement, or otherwise. If any or all of\nthe foregoing provisions of paragraphs 10 and 11 are held to be unenforceable\nfor any reason whatsoever, it shall not in any way invalidate or affect the\nremainder or this Agreement which shall remain in full force and effect. If the\nperiod of time or geographical areas specified in paragraphs 10 and 11 are\ndetermined to be unreasonable in any judicial proceeding, the period of time or\nareas of restriction shall be reduced so that this Agreement may be enforced in\nsuch areas and during \n\n\nsuch period of time as shall be determined to be reasonable.\n\n            35. Full Review. Executive has carefully read and considered the\nprovisions hereof, and having done so, agrees that restrictions and remedies set\nforth in paragraphs 10, 11 and 12 (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            36. Representation. Executive represents and warrants to Employer\nthat Executive is not now under any obligation of a contractual or other nature\nto any person, firm or corporation which is inconsistent or in conflict with\nthis Agreement, or which would prevent, limit or impair in any way the execution\nof this 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 material misrepresentation or\nmaterial breach of this paragraph 14 by Executive.\n\n            37. Waiver. The waiver by either party of a breach of any provision\nof this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach thereof.\n\n            38. Notices. Any and all notices referred to herein shall be\nsufficient if furnished in writing and sent by confirmed fax, by nationally\nrecognized overnight courier with delivery receipt confirmed, or by certified\nmail, return receipt requested, \n\n\nto the respective parties at the addresses set forth below, or such other\naddress as either party may from time to time designate in writing.\n\n                                        To Executive:\n\n                                        Howard J. Kuntz III\n                                        c\/o The Magellan Group\n                                        137 Rowayton Avenue\n                                        Rowayton, CT 06853\n                                        Fax: 203-831-9147\n\n                                        with a copy to:\n\n                                        Feltman Karesh Major &amp; Farbman LLP\n                                        Carnegie Towers\n                                        152 West 57th Street\n                                        New York, NY 10019\n                                        Attention:   Stephen Gross, Esq.\n                                        Fax: 212-586-0951\n\n                                        To Employer:\n\n                                        c\/o CyberShop International, Inc.\n                                        116 Newark Avenue\n                                        Jersey City, New Jersey  07302\n                                        Attention:  Jeffrey S. Tauber, Chairman\n                                        Fax: (201) 234-5052\n\n                                        With copy to:\n                                        Davis &amp; Gilbert LLP\n                                        1740 Broadway\n                                        New York, New York  10019\n                                        Attention:  Walter M. Epstein, Esq.\n                                        Fax: (212) 468-4888\n\n            39. 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 duties hereunder shall be delegable. No\nassignment by Employer shall be effective unless and until CYSP or its successor\nspecifically \n\n\nagrees to guarantee the payment and performance of all obligations of Employer\nor its assignee hereunder and a copy of such assumption has been received by\nExecutive.\n\n            40. 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            41. Applicable Law. This Agreement shall be construed and enforced\nin accordance with the laws of the State of New York.\n\n            42. Miscellaneous. To the extent that Executive performs his duties\nfor Employer in good faith and in a manner Executive reasonably believes to be\nin or not opposed to be the best interests of Employer and not to contravention\nof the terms of this Agreement, Employer agrees to promptly indemnify Executive\nagainst expenses (including but not limited to final judgments and amounts paid\nin settlement to which Employer has consented in writing, which consent shall\nnot be unreasonably withheld or delayed) in connection with litigation against\nExecutive arising out of the performance of his duties hereunder. Executive\nshall provide the Employer with prompt notice of the commencement of any such\nlitigation and Employer will provide defense counsel selected by it absent the\nexistence of any conflict of interest. In the event that a party hereto\ninstitutes any legal action (including any proceedings in a bankruptcy court) to\nenforce his or its rights under, \n\n\nor to recover damages for breach of, this Agreement, the prevailing party in\nsuch an action shall be entitled, in addition to such relief as may be granted,\nto recover from the other party any reasonable attorneys' fees and expenses\nincurred by reason of or related to such action including any appeals thereof.\n\n            43. 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            44. 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\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                                       MG Acquisition Corp d\/b\/a\n                                       THE MAGELLAN GROUP, INC.\n\n\n                                       By:______________________________________\n                                          Jeffrey S. Tauber\n                                          Chairman of the Board\n\n\n                                       _________________________________________\n                                               Howard J. Kuntz III\n\nCYSP as the sole owner of Employer and in order to induce Executive to enter\ninto the Agreement hereby guarantees the performance of all obligations of\nEmployer hereunder to Executive, including without limitation, the payment of\nall compensation payable hereunder.\n\n                                       CYBERSHOP INTERNATIONAL, INC.\n\n\n                                       By:______________________________________\n                                          Jeffrey S. Tauber\n                                          Chairman of the Board\n\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-39634","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\/39634","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=39634"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39634"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39634"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39634"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}