EXHIBIT 10.9
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT, dated as of June 2, 1998, is by and between ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇, residing at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive")
and Cyberian Outpost, Inc., a Connecticut corporation with its principal offices
at ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
WHEREAS, the Company presently employs the Executive pursuant to the terms of an
Employment Agreement made as of June 2, 1997 (the "Former Employment
Agreement");
WHEREAS the Company and the Executive desire to terminate the Former Employment
Agreement; and
WHEREAS the Company wishes to continue to employ the services of the Executive
for the period and upon the terms and conditions hereinafter set forth, and
Executive desires to serve in such capacities upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the Company and Executive hereby agree as follows:
1. Employment.
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(a) The Company will employ the Executive, and the Executive agrees to be
employed by the Company, as Executive Vice President and Chief Financial Officer
of the Company. Executive will have the responsibilities, duties and authority
commensurate with her position as Executive Vice President and Chief Financial
Officer.
(b) Executive shall devote her full business time and energies to the
business and affairs of the Company; provided, however, that nothing contained
in this Paragraph 1(b) shall be deemed to prevent or limit her right to: (i) own
not more than one percent (1%) of the securities of a company that is publicly
traded on a securities exchange or over-the-counter market ( a "Public
Company"), provided that Executive does not otherwise have any relationship with
such company; (ii) make passive investments aggregating to not more than ten
percent (10%) of the securities of any entity that is not a Public Company and
is not engaged in a competing business with the Company and with respect to
which she is not obligated or required to, and which she does not in fact,
devote any substantial efforts which interfere with her fulfillment of her
duties hereunder; (iii) continue her passive investment in ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Ltd.,
provided she is not obligated to or required to, and she does not in fact,
devote any efforts to such entity which interfere with her fulfillment of her
duties hereunder and provided further that such entity does not provide services
to any entity which competes (as defined in Paragraph 14(b) hereof) with the
Company; and (iv) subject to the prior approval of the President and Chief
Executive Officer of the Company, to serve as a member on the Board of
Directors, Board of Trustees or other similar body of other corporations, trade
associations, professional associations or entities, provided that, in any
event, Executive may continue to serve as a member on boards of which she is
currently a
member, consisting of the boards or advisory boards of Connecticut Innovation,
Inc. and Access Connecticut L.P.
2. Term of Employment.
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(a) Executive's employment hereunder shall commence on June 2, 1998 (the
"Commencement Date") and continue until the second anniversary thereof, subject
to extension in accordance with the provisions of the following paragraph,
unless terminated earlier in accordance with the terms hereof (the "Employment
Term").
(b) On each two-year anniversary of the Commencement Date, Executive's
employment hereunder shall be automatically extended for a period ending on the
second anniversary of such date, unless earlier terminated in accordance with
the terms hereof, and unless either Executive or the Company shall have given
written notice to the other of a desire that such automatic extension not occur,
which notice was given no later than thirty (30) days prior to the relevant
anniversary of the Commencement Date. If either party gives such notice and
absent earlier termination in accordance with the terms hereof, the Termination
Date (as defined below) shall be the last day of the Employment Term.
As used herein, "Termination Date" shall mean the last date of Executive's
employment, as determined in accordance with the terms of this Agreement.
3. Compensation.
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(a) Base Salary. In consideration for Executive's services under this
Agreement, Executive will be paid (i) during the period commencing on the
Commencement Date and ending on the first anniversary thereof, salary at an
annual salary rate of $150,000 and (ii) during the twelve (12) month period
commencing on the first anniversary of the Commencement Date and each twelve
(12) month period commencing on each anniversary of the Commencement Date
thereafter during the Employment Term, at an annual salary rate as determined by
the Board of Directors of the Company (the "Board")or its Compensation
Committee, but in any event at least equal to the annual salary rate in effect
immediately preceding the commencement of the twelve (12) month period in
question. Executive's annual salary rate in effect from time to time is referred
to herein as the "Base Salary." Executive's Base Salary shall be paid in
periodic installments at such times as salaries are generally paid to other
senior executives of the Company.
(b) Bonus Plans. In addition to Executive's Base Salary, Executive shall
be entitled to participate in any bonus plans which the Company provides or may
establish for the benefit of its senior executives pursuant to which she may be
paid any such discretionary bonus payments as the Board or its Compensation
Committee shall determine in recognition of Executive's and the Company's
performance.
4. Benefits and Reimbursement of Expenses.
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(a) Vacation. Executive shall be entitled to four (4) weeks of vacation in
the twelve (12) month period commencing on the Commencement Date and ending on
the first anniversary
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thereof and each twelve (12) month period thereafter during the Employment Term
(an "Employment Year"). All vacation days shall be taken with the reasonable
advance approval of the President and Chief Executive Officer at such time or
times reasonably calculated so as not to interfere with the business of the
Company. If Executive does not use her vacation leave in any Employment Year,
she may carry the unused days, including fifteen (15) vacation days which are
accrued as of the date of this Agreement, over from year to year on a cumulative
basis.
(b) Employee Benefit Plans and Other Benefits. Executive shall also be
entitled to participate in any employee benefit plans which the Company provides
or may establish for the benefit of its senior executives (including, without
limitation, group life, medical, dental and other insurance, retirement,
pension, profit-sharing and similar plans).
(c) Reimbursement of Expenses. Executive shall be entitled to
reimbursement for all ordinary and reasonable out-of-pocket business expenses
which are reasonably incurred by her in furtherance of the Company's business in
accordance with reasonable policies adopted from time to time by the Company.
The Company will also provide Executive with a monthly allowance to partially
offset the cost of acquisition and maintenance of a first class automobile for
use by Executive primarily in connection with the performance by her of her
duties under this Agreement.
5. Termination upon Death or Disability.
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(a) Executive's employment by the Company shall terminate upon her death,
or upon fifteen (15) days prior written notice from the Company if, by virtue of
total and permanent disability (as hereinafter defined), Executive is unable to
perform her duties hereunder.
(b) Executive shall be considered to be totally and permanently disabled
hereunder if for reasons involving mental or physical illness or physical injury
Executive is unable to or fails to perform a substantial portion of her duties
hereunder for a period of one hundred twenty (120) consecutive calendar days or
more. The determination that, by virtue of total and permanent disability,
Executive is unable to perform a substantial portion of her duties hereunder
shall be made by a physician chosen by the Company and reasonably satisfactory
to Executive (or her legal representative). The cost of such examination shall
be borne by the Company. Executive shall submit to such examination upon the
Company's request.
(c) For purposes of this Paragraph 5, the Termination Date in the event of
death shall be the date of death and in the event of total and permanent
disability shall be the date fifteen (15) days after the Company's written
notice to Executive that the physician referenced to above in Paragraph 5(b) has
made a determination of Executive's total and permanent disability in accordance
with Paragraph 5(b) above.
6. Termination by the Executive. Executive's employment may be
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terminated by her, by giving a Notice of Termination, as follows: (a) at any
time by written notice of at least sixty (60) days to the Company and; (b) at
any time by written notice for a "Constructive Termination". The Termination
Date in the event of any such termination shall be the date set forth in the
Notice of Termination.
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As used herein, a "Constructive Termination" shall mean: (i) a failure of
the Company to comply with any provision of this Agreement which failure, if
capable of remedy, has not been cured within thirty (30) days after notice of
such noncompliance has been given by the Executive to the Company, provided that
any notice of termination hereunder shall be given within ninety (90) days after
the end of such thirty (30) day period; or (ii) a material change by the Company
in Executive's authority, functions, duties or responsibilities which materially
adversely affects her position with the Company or causes it to become of less
responsibility, scope or importance, provided that such material change is not
in connection with a termination of Executive's employment hereunder for Cause.
7. Termination by the Company.
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(a) Termination Events. Executive's employment may be terminated at any
time by the Company (i) with Cause ( in accordance with Paragraph (b) below) by
a Notice of Termination to Executive, effective immediately unless a later date
is otherwise stated in such notice, which date shall be the Termination Date
therefor, (ii) without Cause at any time, by a Notice of Termination to
Executive, effective sixty (60) days after the date given, except as Executive
and the Company may otherwise agree, which date of effectiveness shall be the
Termination Date therefor, or (iii) for total and permanent disability in
accordance with Paragraph 5.
(b) Definition of "Cause". For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment hereunder upon: (i) the
continued failure by Executive to substantially perform her duties hereunder
(other than any such failure resulting from her incapacity due to physical or
mental illness or any such actual or anticipated failure after the issuance of a
Notice of Termination by Executive for a Constructive Termination); (ii) the
willful engaging by Executive in misconduct which is materially injurious to the
Company's business or reputation, monetarily or otherwise; (iii) the willful
violation by Executive of any material provision of this Agreement; or (iv)
Executive's conviction of an act of fraud or embezzlement against the Company.
Executive shall not be deemed to have been terminated for Cause unless (1)
reasonable notice has been delivered to her setting forth the reasons for the
Company's intention to terminate for Cause, and (2) a period of twenty (20) days
has elapsed since delivery of such notice during which Executive was afforded an
opportunity to cure, if capable of remedy, the reasons for the Company's
intention to terminate for Cause.
8. Notice of Termination. Any termination of Executive's employment by
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the Company or by Executive (other than as a result of death) shall be
communicated by written notice of termination to the other party hereto in
accordance with Paragraph 16(a) (a "Notice of Termination").
9. Payments of Compensation Upon Termination or Expiration.
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(a) Without Cause or upon Constructive Termination. In the event
Executive's employment hereunder is terminated by the Company without Cause
under Paragraph 7 or if Executive terminates her employment for a Constructive
Termination under Paragraph 6, Executive shall be entitled to a lump-sum payment
payable within thirty (30) days of the Termination Date equal to the sum of (i)
the greater of (A) one (1) times the annual Base Salary
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rate in effect immediately prior to the Termination Date or (B) the amount
Executive would have received if her employment had continued through the next
two-year anniversary of the Commencement Date, plus (ii) to the extent earned
and not already paid, any bonus payable pursuant to Paragraph 3 for the prior
fiscal year. Furthermore, in such event, Executive shall be entitled to the
continuation of benefits set forth in Paragraph 11 below until the later of (A)
twelve (12) months following the Termination Date or (B) the date which would
have been the next two-year anniversary of the Commencement Date.
(b) For Cause, by Executive other than for Constructive Termination, or
upon Death or Total and Permanent Disability. In the event the Company shall
terminate Executive's employment for Cause, or Executive shall terminate her
employment for other than Constructive Termination, or Executive gives written
notice under Paragraph 2(b) of her desire to end the automatic extension of the
Employment Term, or in the event of the death or total and permanent disability
of Executive pursuant to Paragraph 5, then Executive shall be entitled as of the
Termination Date to no compensation under this Agreement, except as provided in
Paragraph 12.
(c) Expiration Occasioned by Company. If the Company gives Executive
written notice under Paragraph 2(b) above that the Employment Term shall not be
extended, Executive shall be entitled to a lump-sum payment payable within
thirty (30) days of the expiration of the Employment Term equal to the sum of
(i) one (1) times the annual Base Salary rate in effect immediately prior to the
Termination Date, plus (ii) to the extent earned and not already paid, any bonus
payable pursuant to Paragraph 3 for the prior fiscal year. Furthermore, in such
event, Executive shall be entitled to the continuation of benefits set forth in
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇. (▇) Termination following a Change of Control. In the event
that, following a Change of Control (as defined below) of the Company, (i)
Executive's employment hereunder is terminated by the Company without Cause
under Paragraph 7, or (ii) Executive's employment is terminated by Executive for
a Constructive Termination, or (iii) if the Company gives Executive written
notice under Paragraph 2(b) above that the Employment Term shall not be
extended, Executive shall be entitled to a lump-sum payment payable within
thirty (30) days of the expiration of the Employment Term equal to the sum of
(i) three (3) times the annual Base Salary rate in effect immediately prior to
such Termination Date, plus (ii) to the extent earned and not already paid, any
bonus payable pursuant to Paragraph 3 for the prior fiscal year. Furthermore, in
such event, Executive shall be entitled to the continuation of benefits set
forth in Paragraph 11 below until the later of (A) twelve (12) months following
the Termination Date or (B) the date which would have been the next two-year
anniversary of the Commencement Date.
As used herein, a "Change of Control" shall be deemed to have occurred upon
the occurrence of any of the following:
(i) any sale, lease, exchange or other transfer (in one transaction or a
series of transactions) of all or substantially all of the assets of the
Company;
(ii) individuals who, as of the date hereof, constitute the entire Board of
Directors of the Company (the "Incumbent Directors") cease for any reason
to constitute at least a majority of the Board of Directors (hereinafter
referred to as a "Board Change"), provided
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that any individual becoming a director subsequent to the date hereof whose
election or nomination for election was approved by a vote of at least a
majority of the then Incumbent Directors shall be, for purposes of this
provision, considered as though such individual were an Incumbent Director;
or
(iii) any consolidation or merger of the Company (including, without
limitation, a triangular merger) where the shareholders of the Company,
immediately prior to the consolidation or merger, would not, immediately
after the consolidation or merger, beneficially own, directly or
indirectly, shares representing in the aggregate more than fifty percent
(50%) of the combined voting power of all the outstanding securities of the
corporation issuing cash or securities in the consolidation or merger (or
of its ultimate parent corporation, if any); or
(iv) any "person," as such term is used in Section 13(d) of the Securities
Exchange Act of 1934, as amended (or any successor provision) (the
"Exchange Act") (other than ▇▇▇▇▇▇ ▇▇▇▇, the Company, any employee benefit
plan of the Company or any entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan), together with
all "affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Exchange Act or any successor provision) of such person, shall
become the "beneficial owner" or "beneficial owners" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act or any successor provision),
directly or indirectly, of securities of the Company representing in the
aggregate (A) in the event the Company is not a "Reporting Company"
(meaning a Company that is subject to the reporting requirements of the
Exchange Act and has registered shares of a class of equity securities
pursuant to Section 12(g) or 12(b) of the Exchange Act), fifty percent
(50%) or more or (B) in the event the Company is a Reporting Company,
twenty-five percent (25%) or more of either (1) the then outstanding shares
of Common Stock of the Company or (2) the combined voting power of all then
outstanding securities of the Company having the right under ordinary
circumstances to vote in an election of the Board of Directors of the
Company.
10. Equity Compensation.
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(a) New Option. No later than the effective date of the Company's initial
public offering, the Company shall grant to Executive, an option (which shall,
in the discretion of Executive, be either a non-qualified option or an incentive
option within the meaning of Section 422 of the Internal Revenue Code ("Section
422") (or any combination thereof), provided that any incentive option must
comply with all applicable provisions of Section 422) to purchase 100,000 shares
of the common stock of the Company pursuant to the Company's 1998 Employee,
Director and Consultant Stock Plan at a per share exercise price equal to the
price to the public in the initial public offering. The option will have a term
of ten years. The option will become exercisable for 20,000 shares on the first
anniversary of the grant of the option and the remainder of the option will
become exercisable in 48 equal monthly installments over the subsequent four
years. The option will be subject to such other terms as deemed appropriate by
the Board or its Compensation Committee and set forth in the applicable option
agreement. In
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the event of a Change of Control following the Company's initial public
offering, the option will become fully exercisable.
(b) Existing Options. Notwithstanding anything to the contrary contained
in the Company's 1997 Stock Incentive Plan or contained in Executive's option
agreement dated August 15, 1997 with respect to 12,000 shares, her option
agreement dated August 15, 1997 with respect to 20,000 shares, her option
agreement dated January 8, 1998 with respect to 45,000 shares and her option
agreement dated January 8, 1998 with respect to 100,000 shares (the "Existing
Options"), the Existing Options are hereby amended to provide that (i) the
Existing Options will become fully exercisable in the event of a Change of
Control (as defined herein) and (ii) the definition of "cause" for purposes of
the Existing Options will be the definition of "Cause" contained in this
Agreement.
11. Continuation of Benefits. In the event Executive's employment
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hereunder is terminated by Executive for a Constructive Termination or by the
Company without Cause or if the Company gives Executive written notice under
Paragraph 2(b) above that the Employment Term shall not be extended, then
Executive shall continue to be entitled to the insurance benefits to which she
was entitled, pursuant to Paragraph 4(b) hereof, as of immediately preceding the
applicable Termination Date at the Company's expense for the period of time
following the Termination Date until the date which is one (1) year after the
Termination Date.
12. Accrued Compensation. In the event of any termination of Executive's
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employment for any reason, Executive (or her estate) shall be paid such portion
of Executive's Base Salary as has accrued by virtue of her employment during the
period prior to termination and has not yet been paid, together with any amounts
for accrued but unused vacation time and for expense reimbursement and similar
items which have been properly incurred in accordance with the provisions hereof
prior to termination and have not yet been paid. Such amounts shall be paid
within thirty (30) days of the Termination Date.
13. Confidential Information. The Executive shall not use for her own
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advantage or disclose any proprietary or confidential information relating to
the business operations or properties of the Company or any other entity
directly or indirectly controlled by the Company (each an "Affiliate") or any of
their respective customers, suppliers, servicers, licensors or licensees, unless
such information has become public through no fault of the Executive. Upon
termination of the Executive's employment, the Executive will surrender and
deliver to the Company all documents and information of every kind relating to
or connected with the Company or any Affiliate and their respective businesses,
customers, suppliers, servicers, landlords, licensors and licensees.
14. Non-compete.
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(a) During Executive's employment under this Agreement or otherwise and
for a period of one (1) year after the Termination Date, Executive will not,
without the express written consent of the Company, anywhere in the United
States or any territory or possession thereof or in any foreign country in which
the Company was active as of the Termination Date: (i) compete with the Company
or any Affiliate; or (ii) otherwise interfere with, disrupt or attempt to
interfere
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with or disrupt the relationship between the Company or an Affiliate and any
person or business that was a customer, supplier, lessor, licensor, contractor
or employee of the Company or such Affiliate on the Termination Date or within
two (2) years prior to the Termination Date. In addition, for a period of one
(1) year after the Termination Date, Executive will not, directly or indirectly,
solicit or endeavor to entice away from the Company any of its employees.
(b) The term "compete" as used in this Paragraph 14 means directly or
indirectly, or by association with any entity or business, either as a
proprietor, partner, employee, agent, consultant, director, officer, shareholder
or in any other capacity or manner to solicit for hire, hire, sell to, rent
from, or otherwise conduct any business related to the Internet-based retail
sale of computer hardware, software or peripherals or any other material
business conducted by the Company or which the Company has made plans to conduct
at the time of the Termination Date.
(c) The foregoing shall not prohibit Executive from owning not more than
one percent (1%) of the securities of a company that is publicly traded on a
securities exchange or over-the-counter market, provided that Executive does not
otherwise have any relationship with such company.
15. Indemnification; Insurance. During the period of Executive's
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employment hereunder and thereafter, the Company agrees to indemnify Executive
in her capacity as an officer of the Company to the maximum extent permitted
under applicable state law, and, without limiting the foregoing, the Company
will pay all expenses incurred by Executive in accordance with Section 145(e) of
the Delaware General Corporation Law; this provision will survive the
termination of this Agreement. Further, if available upon payment of a
reasonable premium as determined by the Board, the Company will secure standard
Director and Officer Liability Insurance covering Executive in her capacity as
an officer of the Company to the extent such insurance is secured for other
senior executives of the Company.
16. General.
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(a) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be addressed to the receiving party's
address set forth below or to such other address as a party may designate by
notice hereunder, and shall be either (i) delivered by hand, (ii) made by
telecopy, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid.
If to the Company: Cyberian Outpost, Inc.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
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If to Executive: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telecopy, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise, (iii) if sent by overnight courier, on
the next business day following the day such notice is delivered to the courier
service, or (iv) if sent by registered or certified mail, on the fifth business
day following the day such mailing is made.
(b) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof, including without limitation, the Former
Employment Agreement. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement shall affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by the
parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
(e) Parties. This Agreement is personal and shall in no way be subject to
assignment by Executive. This Agreement shall be binding upon and shall inure to
the benefit of the Company and its successors and assigns either by merger,
operation of law, consolidation, assignment, purchase or other acquisition of a
controlling interest in the business of the Company, and shall be binding upon
and shall inure to the benefit of Executive, his heirs, executors,
administrators, personal and legal representatives, distributees, devisees,
legatees, successors and permitted assigns. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor as
aforesaid.
(f) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and governed by the law
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
(g) Jurisdiction and Service of Process. Any legal action or proceeding
with respect to this Agreement shall be brought in the courts of the State of
Connecticut or of the United
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States of America for the District of Connecticut. By execution and delivery of
this Agreement, each of the parties hereto accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each of the parties hereto irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by certified mail, postage prepaid, to the party
at its address set forth in Paragraph 16(a) hereof.
(h) Severability. The parties intend this Agreement to be enforced as
written. However, if any portion or provision of this Agreement shall to any
extent be declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(i) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect the meaning or construction of any of the terms or
provisions hereof.
(j) No Waiver of Rights, Powers and Remedies. No failure or delay by a
party hereto in exercising any right, power or remedy under this Agreement, and
no course of dealing between the parties hereto, shall operate as a waiver of
any such right, power or remedy of the party. No single or partial exercise of
any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand.
(k) Expenses. The Company will reimburse the Executive for her reasonable
legal fees in connection with the negotiation of this Agreement.
(l) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
CYBERIAN OUTPOST, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇,
President and Chief Executive Officer
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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