Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Form 8-K for the Period Ended June 1, 1998 5 23K
2: EX-7.1 Proxy From Cyber Depot, Inc. to Frank W. Denny 2 10K
3: EX-7.2 Proxy From Robert J. McNulty to Doug Hay 2 10K
4: EX-7.3 Proxy From Robert J. McNulty to Paul J. Hill 2 10K
5: EX-7.4 Proxy From Robert J. McNulty to Edward F. Bradley 2 10K
6: EX-7.5 Proxy From Robert J. McNulty to John Markley 2 10K
7: EX-10.20 Employment Agreement Between Co. & John Markley 7 19K
8: EX-10.21 Termination and Buyout Agreement 5 24K
9: EX-10.22 Consulting Agreement Between Co. & Cyber Depot 8 20K
10: EX-10.23 Consulting Agreement Between Co. & Stilden Co. 7 18K
11: EX-20.2 Letter of Resignation From Robert J. McNulty 2 10K
12: EX-99.1 Press Release Dated June 5, 1998 2 10K
EX-10.22 — Consulting Agreement Between Co. & Cyber Depot
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EXHIBIT 10.22
CONSULTING AGREEMENT BETWEEN SHOPPING.COM
AND CYBER DEPOT, INC.
JUNE 1, 1998
CONSULTING AGREEMENT
--------------------
This consulting agreement is made on June 1, 1998 between CYBER DEPOT, INC.
(CD), a California Corporation, and SHOPPING.COM (S.C.) a California
Corporation. Cyber Depot, Inc. is in the consulting business and Shopping.com
wishes to employ the consulting services of CD. NOW, THEREFORE, in consideration
of the mutual covenants contained herein, the parties hereto agree as follows:
ARTICLE I
TERM
The term of this agreement shall be for a period of three years commencing June
1, 1998 and ending on March 31,2001. The contract will automatically be renewed
in one-year increments unless either party terminates via giving written notice
by January 31st each year starting with January 31, 2001.
ARTICLE II
SERVICES
CD shall assign its principal, Robert J. McNulty, to provide general services
relating to the operation, promotion, strategic planning marketing, geographic
expansion and financing of S.C's business. In addition, Mr. McNulty will provide
recommendations concerning S.C's business consulting operations and management,
attend meetings as directed by the Board of Directors, attend trade and
technology shows and complete specific assignments as directed by the Board of
Directors. Mr. McNulty will spend a
minimum of 75% of his business time, which will equate to a minimum of 130 hours
per month, specifically working on S.C's business.
ARTICLE III
FEES
CD shall receive $21,500 monthly fee, which will be invoiced to S.C. on the
first of each succeeding month. S.C. agrees to pay CD invoices by the 10th of
each succeeding month. Actual business expenses will be 100% reimbursed by S.C.
CD will document all expenses on an approved expense form.
As a further consideration for executing this Agreement the company has granted
to CD or its designee stock options as follows:
STOCK OPTIONS
CD or its designee shall be granted the option to purchase One Hundred Thousand
(100,000) shares of the common stock of SC, exercisable during the period
beginning with the effective date of the Agreement, and ending five (5) years
therefrom, during which period all or a portion of such options shall be
exercisable by Robert J. McNulty or its designee. The option price shall be the
closing market sale price of the common shares of SC on the effective date of
this Agreement. The terms of this option are more specifically set forth in the
Stock Option Agreement, a copy of which is attached hereto as Exhibit A and
incorporated herein by this reference.
ARTICLE IV
NON-DISCLOSURE AND SECRECY
CD agrees that, during the term of this Agreement, and at all times thereafter,
it will keep and cause all of its officers, directors, employees, agents and
representatives to keep all S.C. information in strictest confidence and will
not itself either directly or indirectly use or allow to be used for its
benefit, or the benefit of others, disseminate or disclose any Confidential
Information or Trade Secrets (as such terms are defined below) used and/or
obtained in providing the Services hereunder, except to parties to this
Agreement, regardless of whether the Confidential information of Trade Secrets
have been conceived or developed, in whole or in part by CD. CD acknowledges and
agrees that the terms "Confidential Information" and "Trade Secrets" as used in
this Agreement include without limitation, the whole or any portion or phase of
any design, process, service, procedure, formula, improvement, customer list,
information with respect to customer requirements and practices, marketing
research and development information, statistical data, sources of merchandise,
technical information, computer models, and all other information concerning the
industry and business in which the S.C. concept operates and which is of value
in the operation of S.C. business, or is otherwise understood to be, of a
confidential character and which has not been published or otherwise understood
to be, of a confidential character and which has not been published or otherwise
become a matter of general public knowledge. CD agrees that all Trade Secrets
and Confidential Information are and shall be the property of S.C. regardless of
whether conceived or developed by CD pursuant to the Services.
CD acknowledges and agrees that any and all Trade Secrets, Confidential
Information, computer programs, documentation and other copyrightable or
trademark materials that CD is asked to prepare or work on as part of CD's
consulting services hereunder shall be the property of S.C to that end, CD
hereby irrevocably assigns, transfers, sets over and conveys to S.C all of CD's
right, title and interest in and to all such information,
including, without limitation, CD's copyrights or rights of trademark. CD's
irrevocable assignment hereunder shall be deemed to have been coupled with an
interest.
Upon termination or earlier expiration of this Agreement CD shall surrender to
S.C. at any time of such expiration or termination of this Agreement or upon
demand by S.C. at any time all material of a confidential and secret nature,
including without limitation, the Confidential Information and Trade Secrets,
and any other documents of a proprietary nature as may then be in CD (s)
possession or control.
ARTICLE V
INDEPENDENT CONTRACTOR STATUS
CD shall perform the consulting services required hereunder as an independent
contractor and an employee of SC for all purposes, including but not limited to
California Employment and Labor Laws, and California and Federal tax purposes.
SC is interested only in the results obtained by CD, who shall solely control
and determine the method, details, and means of performing the consulting
services required hereunder, except as otherwise stated in this Agreement. CD
shall not use S.C's name in any manner which would submit it to state of federal
taxes, contributions or any employment tax or benefit or related expense of any
kind. CD shall not represent or consider itself or any of its representatives as
an officer, partner or joint venturer of the Company. Nothing herein shall be
deemed or construed as creating a joint venture, partnership or unincorporated
association between S.c and CD. S.C shall not be obligated to, and shall not,
withhold any amounts from CD's compensation for payments of taxes. CD is solely
responsible for all taxes which may be due as a result of the payment of CD's
compensation.
ARTICLE VI
MISCELLANEOUS
1. INJUNCTIVE RELIEF CD acknowledges and agrees that any breach of obligations
to be performed by and pursuant to Article IV is likely to result in irreparable
harm to S.C and CD therefore consents and agrees that if it violates any such
obligations, S.C shall be entitled, among and in addition to any other rights
and remedies available under this Agreement or otherwise, to temporary and
permanent injunctive relief to prevent CD from committing or continuing a breach
of such obligations.
2. ENTIRE AGREEMENT This agreement constitutes the whole Agreement between the
parties hereto and there are no other terms other than those contained herein.
This Agreement supersedes any prior contract or understanding related to
retaining CD.
3. AMENDMENT No variation of this Agreement shall be deemed valid unless in
writing and signed by the parties hereto.
4. GOVERNING LAW This agreement shall be construed and enforced in accordance
with the laws of California.
5. SEVERABILITY Each provision of this Agreement is intended to be severable
from the other so that if any provision or term hereof is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not effect the
validity of the remaining provisions and terms hereof.
6. INDEMNITY AND HOLD HARMLESS S.C agrees to indemnify and does hold harmless
CD and its subsidiaries, affiliated companies, shareholders, officers,
directors, agents, employees, successors and assigns from and against any and
all liabilities, claims, demands, damages, costs and expenses (including
attorney's fees) resulting from, arising out of, or occasioned by any S.C
business related activity or the services provided by CD hereunder.
7. ASSIGNMENT This Agreement may not be assigned by CD to any other person or
party without S.C's prior written consent which may be withheld in S.C's sole
discretion. Notwithstanding the forgoing, S.C may assign this Agreement to any
successor corporation, affiliated company of subsidiary. In the case of
assignment by S.C, Assignee shall assume, in writing, S.C obligations.
8. REPRESENTATION AND WARRANTY Each Consultant hereby agrees that any documents
produced with respect to the Services and/or the Concept shall be marked
"Confidential" and "Property of Shopping.com" whether those documents are
produced by CD or by a vendor chosen by CD.
9. CAPTIONS Captions used in this Agreement are used for convenience only and
are not intended to, nor are they to be construed to, have any substantive
meaning or control in the construction of the Agreement.
10. NOTICES Any Notice given by one party to any other party hereunder shall be
delivered to the party at the address indicated below that party's signature to
this Agreement. Such notice shall be given to U.S. Mail, certified, and shall be
deemed delivered on the date of actual receipt or the date of first refusal to
accept delivery.
11. CHANGE OF CONTROL In the event the number of members of the Board of
Directors of the Company equal to a majority of the Board as of the Effective
Date hereof are replaced by other members, CD shall have the option of
accelerating any remaining payments of fees due to be paid under Article III in
a lump sum, upon thirty (30) days written notice to the Company.
12. REPRESENTATION BY COUNSEL Each party agrees and acknowledges that it has had
the opportunity to consult with independent legal, tax and financial counsel of
each party's choice in order to be advised with respect to the effect of the
Agreement.
13. CONSTRUCTION Any issues with respect to construction or interpretation of
this Agreement are to be resolved without resort to the presumption that any
ambiguities in this Agreement should be construed against the drafter.
/s/ Robert J. McNulty /s/ Ed Bradley
---------------------------- ---------------------------
Cyber Depot, Inc. Shopping.com
By: Robert J. McNulty By: Ed Bradley
/s/ Frank W. Denny /s/ Kristine E. Webster
---------------------------- ---------------------------
Shopping.com Shopping.com
By: Frank W. Denny By: Kristine E. Webster
Dates Referenced Herein and Documents Incorporated by Reference
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