-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ks9hPGrnEGnNhJemo33gLZrODB085gnHO02WXN0MzDKeBQsdo3TR+2yuQMHw1Slq kzXT3mBNa4OMJ7fpWSQ0LA== 0000892569-98-001739.txt : 19980610 0000892569-98-001739.hdr.sgml : 19980610 ACCESSION NUMBER: 0000892569-98-001739 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 19980601 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980609 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SHOPPING COM CENTRAL INDEX KEY: 0001045360 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 330733679 STATE OF INCORPORATION: CA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-29518 FILM NUMBER: 98644980 BUSINESS ADDRESS: STREET 1: 2101 E COAST HIGHWAY GARDEN LEVEL CITY: CORONA DEL MAR STATE: CA ZIP: 92625 BUSINESS PHONE: 7146404393 8-K 1 FORM 8-K FOR THE PERIOD ENDED JUNE 1, 1998 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of The Securities Act of 1934 Date of Report (Date of earliest event reported): June 1, 1998 SHOPPING.COM (Exact name of registrant as specified in its charter) CALIFORNIA 333-36215 33-0733679 (State or other (Commission (I.R.S. Employer jurisdiction File Number) Identification No.) of incorporation) 2101 E. COAST HIGHWAY, GARDEN LEVEL CORONA DEL MAR, CALIFORNIA 92625 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (714) 640-4393 - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report.) ================================================================================ 2 ITEM 5 OTHER EVENTS. On June 1, 1998, the Board of Directors accepted the resignation of Robert J. McNulty from his positions as President and Chief Executive Officer and as a board member of Shopping.com (the "Company") for personal reasons. (Resignation letter is attached as Exhibit 20.2). The Company has appointed John Markley as Chief Executive Officer and President to replace Mr. McNulty and assume such responsibilities effective immediately. (Employment Agreement dated June 1, 1998 is attached as 10.20). Mr. Markley has also been appointed to the board of directors to fill the vacancy created by Mr. McNulty's resignation. Mr. Markley is currently the founder of Allwoods Management Group providing management consulting to businesses primarily in the areas of retailing and real estate. From 1989 until present, Mr. Markley has served as the Chairman of the Board and Chief Executive Officer of Pay N' Pak Home Centers, a regional chain of 102 Home Improvement Centers with annual sales in excess of $498 million who filed for protection under the Federal Bankruptcy Code (11USC) in 1991. Mr. Markley also held the position of President and Chief Executive Officer of the W. R. Grace Western Region Home Center Division, building and managing a regional chain of 94 Home Improvement Centers operating in six Western States with annual sales in excess of $450 million. Mr. Markley has over twenty five years experience in the retail industry. From 1985-1989, Mr. Markley was the founder and managing broker for six offices of Re/Max Realtors in Southern California with sales of $200 million in residential and commercial real estate. Prior to this, Mr. Markley was Executive Vice President & General Manager of Cashways Building Materials, a chain of 12 Home Improvement stores with annual sales in excess of $100 million. (Press Release dated June 5, 1998 is attached as 99.1). Effective June 1, 1998, the Company entered into a Termination and Buy-Out Agreement with Mr. McNulty terminating his Employment Agreement dated May 1, 1997 whereby he will receive cash consideration, which is to be paid over the next two years and options to purchase shares of the Company's common stock. (Termination Agreement dated June 1, 1998 is attached as 10-21). Effective June 1, 1998, the Company entered into a three year consulting agreement with Cyber Depot, Inc., a California corporation whereby Cyber Depot's principal, Mr. Robert McNulty, will act as a consultant to the Company providing general services relating to the operation, promotion, strategic planning marketing, geographic expansion and financing of the Company's business. (Consulting Agreement dated June 1, 1998 is attached as 10.21). Also effective June 1, 1998, Mr. McNulty granted irrevocable proxies, expiring on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Company that the Agreement is no longer in the best interest of the Company, to Douglas Hay a director and Executive Vice President of the Company for 204,750 shares, Paul J. Hill, a director of the Company, for 204,750 shares, Edward F. Bradley, a director of the Company, for 204,750 shares and John Markley for 204,750 shares. Cyber Depot, Inc., in which Mr. McNulty is a principal, has granted an irrevocable proxy to Frank Denny the Chairman of the Board, for 250,000 shares expiring on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. The five proxies totaling 1,069,000 shares of common stock represent all of the issued and outstanding shares of common stock in the Company owned and controlled by Mr. McNulty. 3 ITEM 7 EXHIBITS. The following exhibits are filed as part of this report in accordance with the provisions of Item 601 of Regulation S-B: Exhibit Name of Exhibit - ------- --------------- 7.1 Irrevocable Proxy dated June 1, 1998 from Cyber Depot, Inc. to Frank W. Denny 7.2 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Doug Hay 7.3 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Paul J. Hill 7.4 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Edward F. Bradley 7.5 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to John Markley 10.20 Employment Agreement between the Company, Shopping.com and John H. Markley Dated June 1, 1998 10.21 Termination and Buy-Out Agreement between the Company, Shopping.com and Robert J. McNulty Dated June 1, 1998. 10.22 Consulting Agreement between the Company, Shopping.com and Cyber Depot, Inc. Dated June 1, 1998 10.23 Consulting Agreement between the Company, Shopping.com and Stilden Co., Inc. Dated April 1, 1998 20.2 Letter of Resignation dated June 1, 1998 from Robert J. McNulty 99.3 Press Release Dated June 5, 1998 4 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. SHOPPING.COM Date: June 9, 1998 By: /s/ Kristine E. Webster -------------------------------- Kristine E. Webster Chief Financial Officer and Treasurer (Principal Accounting Officer) 5 EXHIBIT INDEX Exhibit Name of Exhibit - ------- --------------- 7.1 Irrevocable Proxy dated June 1, 1998 from Cyber Depot, Inc. to Frank W. Denny 7.2 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Doug Hay 7.3 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Paul J. Hill 7.4 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to Edward F. Bradley 7.5 Irrevocable Proxy dated June 1, 1998 from Robert J. McNulty to John Markley 10.20 Employment Agreement between the Company, Shopping.com and John H. Markley Dated June 1, 1998 10.21 Termination and Buy-Out Agreement between the Company, Shopping.com and Robert J. McNulty Dated June 1, 1998. 10.22 Consulting Agreement between the Company, Shopping.com and Cyber Depot, Inc. Dated June 1, 1998 10.23 Consulting Agreement between the Company, Shopping.com and Stilden Co., Inc. Dated April 1, 1998 20.2 Letter of Resignation dated June 1, 1998 from Robert J. McNulty 99.1 Press Release dated June 5, 1998 EX-7.1 2 PROXY FROM CYBER DEPOT, INC. TO FRANK W. DENNY 1 EXHIBIT 7.1 IRREVOCABLE PROXY FROM ROBERT J. MCNULTY TO FRAN W. DENNY JUNE 1, 1998 2 IRREVOCABLE PROXY The undersigned Robert J. McNulty ("McNulty"), Principal of Cyber Depot, Inc., hereby constitutes and appoints Frank W. Denny ("Denny") his lawful attorney-in fact and proxy, pursuant to the provisions of the California Corporations Code, to vote at all meeting of the stockholders and any adjournments thereof, to execute and deliver written consents, and in all other ways act in McNulty's place and stead, with respect to Two Hundred Fifty Thousand (250,000) shares only of the common stock (the "Stock") of Shopping.com (the "Corporation") now owned by McNulty and/or his Successors (as defined below) as fully, to the same extent and with the same effect as McNulty might or could do under any applicable laws or regulations governing the rights and powers of the stockholders of a California corporation with respect to any and all business and other matters (including, but not limited to, the election of directors) which are presented to the stockholders of the Corporation. McNulty hereby ratifies and confirms all that Denny may do or cause to be done by virtue of this Irrevocable Proxy. McNulty further understands and agrees that this Irrevocable Proxy may be exercised by Denny for the period beginning the date hereof and ending on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. This Irrevocable Proxy encompasses Two Hundred Fifty Thousand (250,000) shares only of the Common Stock owned by McNulty on this date and not the full holdings of McNulty. This Irrevocable Proxy is coupled with an interest and shall remain in full force and effect and, shall be enforceable against any donees, devisees, transferees, or assignees of the undersigned. This Irrevocable Proxy shall be binding upon and be enforceable against McNulty and his heirs, legal and personal representatives, successors, and assigns. In the event that Denny is unable to exercise the rights granted by this Irrevocable Proxy because of death or disability, McNulty hereby appoints Doug Jennings as the successor proxy holder to Denny, entitled to exercise all of the rights of Denny under the premises. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this 1st day of June, 1998. Cyber Depot, Inc. By: /s/ Robert J. McNulty ----------------------------- Robert J. McNulty, President Agreed and Accepted this 1st day of June, 1998 /s/ Frank W. Denny - --------------------------- Frank Denny EX-7.2 3 PROXY FROM ROBERT J. MCNULTY TO DOUG HAY 1 EXHIBIT 7.2 IRREVOCABLE PROXY FROM ROBERT J. MCNULTY TO DOUG HAY JUNE 1, 1998 2 IRREVOCABLE PROXY The undersigned Robert J. McNulty ("McNulty") hereby constitutes and appoints Doug Hay ("Hay") his lawful attorney-in fact and proxy, pursuant to the provisions of the California Corporations Code, to vote at all meeting of the stockholders and any adjournments thereof, to execute and deliver written consents, and in all other ways act in McNulty's place and stead, with respect to Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the common stock (the "Stock") of Shopping.com (the "Corporation") now owned by McNulty and/or his Successors (as defined below) as fully, to the same extent and with the same effect as McNulty might or could do under any applicable laws or regulations governing the rights and powers of the stockholders of a California corporation with respect to any and all business and other matters (including, but not limited to, the election of directors) which are presented to the stockholders of the Corporation. McNulty hereby ratifies and confirms all that Hay may do or cause to be done by virtue of this Irrevocable Proxy. McNulty further understands and agrees that this Irrevocable Proxy may be exercised by Hay for the period beginning the date hereof and ending on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. This Irrevocable Proxy encompasses Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the Common Stock owned by McNulty on this date and not the full holdings of McNulty. This Irrevocable Proxy is coupled with an interest and shall remain in full force and effect and, shall be enforceable against any donees, devisees, transferees, or assignees of the undersigned. This Irrevocable Proxy shall be binding upon and be enforceable against McNulty and his heirs, legal and personal representatives, successors, and assigns. In the event that Hay is unable to exercise the rights granted by this Irrevocable Proxy because of death or disability, McNulty hereby appoints Doug Jennings as the successor proxy holder to Hay, entitled to exercise all of the rights of Hay under the premises. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this 1st day of June, 1998. /s/ Robert J. McNulty ----------------------------- Robert J. McNulty Agreed and Accepted this 1st day of June, 1998 /s/ Doug Hay - ------------------------ Doug Hay EX-7.3 4 PROXY FROM ROBERT J. MCNULTY TO PAUL J. HILL 1 EXHIBIT 7.3 IRREVOCABLE PROXY FROM ROBERT J. MCNULTY TO PAUL J. HILL JUNE 1, 1998 2 IRREVOCABLE PROXY The undersigned Robert J. McNulty ("McNulty") hereby constitutes and appoints Paul J. Hill ("Hill") his lawful attorney-in fact and proxy, pursuant to the provisions of the California Corporations Code, to vote at all meeting of the stockholders and any adjournments thereof, to execute and deliver written consents, and in all other ways act in McNulty's place and stead, with respect to Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the common stock (the "Stock") of Shopping.com (the "Corporation") now owned by McNulty and/or his Successors (as defined below) as fully, to the same extent and with the same effect as McNulty might or could do under any applicable laws or regulations governing the rights and powers of the stockholders of a California corporation with respect to any and all business and other matters (including, but not limited to, the election of directors) which are presented to the stockholders of the Corporation. McNulty hereby ratifies and confirms all that Hill may do or cause to be done by virtue of this Irrevocable Proxy. McNulty further understands and agrees that this Irrevocable Proxy may be exercised by Hill for the period beginning the date hereof and ending on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. This Irrevocable Proxy encompasses Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the Common Stock owned by McNulty on this date and not the full holdings of McNulty. This Irrevocable Proxy is coupled with an interest and shall remain in full force and effect and, shall be enforceable against any donees, devisees, transferees, or assignees of the undersigned. This Irrevocable Proxy shall be binding upon and be enforceable against McNulty and his heirs, legal and personal representatives, successors, and assigns. In the event that Hill is unable to exercise the rights granted by this Irrevocable Proxy because of death or disability, McNulty hereby appoints Doug Jennings as the successor proxy holder to Hill, entitled to exercise all of the rights of Hill under the premises. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this 1st day of June, 1998. /s/ Robert J. McNulty ----------------------------- Robert J. McNulty Agreed and Accepted this 1st day of June, 1998 /s/ Paul J. Hill - ------------------------ Paul J.Hill EX-7.4 5 PROXY FROM ROBERT J. MCNULTY TO EDWARD F. BRADLEY 1 EXHIBIT 7.4 IRREVOCABLE PROXY FROM ROBERT J. MCNULTY TO EDWARD F. BRADLEY JUNE 1, 1998 2 IRREVOCABLE PROXY The undersigned Robert J. McNulty ("McNulty") hereby constitutes and appoints Edward F. Bradley ("Bradley") his lawful attorney-in fact and proxy, pursuant to the provisions of the California Corporations Code, to vote at all meeting of the stockholders and any adjournments thereof, to execute and deliver written consents, and in all other ways act in McNulty's place and stead, with respect to Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the common stock (the "Stock") of Shopping.com (the "Corporation") now owned by McNulty and/or his Successors (as defined below) as fully, to the same extent and with the same effect as McNulty might or could do under any applicable laws or regulations governing the rights and powers of the stockholders of a California corporation with respect to any and all business and other matters (including, but not limited to, the election of directors) which are presented to the stockholders of the Corporation. McNulty hereby ratifies and confirms all that Bradley may do or cause to be done by virtue of this Irrevocable Proxy. McNulty further understands and agrees that this Irrevocable Proxy may be exercised by Bradley for the period beginning the date hereof and ending on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. This Irrevocable Proxy encompasses Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the Common Stock owned by McNulty on this date and not the full holdings of McNulty. This Irrevocable Proxy is coupled with an interest and shall remain in full force and effect and, shall be enforceable against any donees, devisees, transferees, or assignees of the undersigned. This Irrevocable Proxy shall be binding upon and be enforceable against McNulty and his heirs, legal and personal representatives, successors, and assigns. In the event that Bradley is unable to exercise the rights granted by this Irrevocable Proxy because of death or disability, McNulty hereby appoints Doug Jennings as the successor proxy holder to Bradley, entitled to exercise all of the rights of Bradley under the premises. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this 1st day of June, 1998. /s/ Robert J. McNulty ----------------------------- Robert J. McNulty Agreed and Accepted this 1st day of June, 1998 /s/ Edward F. Bradley - --------------------------- Edward F. Bradley EX-7.5 6 PROXY FROM ROBERT J. MCNULTY TO JOHN MARKLEY 1 EXHIBIT 7.5 IRREVOCABLE PROXY FROM ROBERT J. MCNULTY TO JOHN MARKLEY JUNE 1, 1998 2 IRREVOCABLE PROXY The undersigned Robert J. McNulty ("McNulty") hereby constitutes and appoints John Markley ("Markley") his lawful attorney-in fact and proxy, pursuant to the provisions of the California Corporations Code, to vote at all meeting of the stockholders and any adjournments thereof, to execute and deliver written consents, and in all other ways act in McNulty's place and stead, with respect to Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the common stock (the "Stock") of Shopping.com (the "Corporation") now owned by McNulty and/or his Successors (as defined below) as fully, to the same extent and with the same effect as McNulty might or could do under any applicable laws or regulations governing the rights and powers of the stockholders of a California corporation with respect to any and all business and other matters (including, but not limited to, the election of directors) which are presented to the stockholders of the Corporation. McNulty hereby ratifies and confirms all that Markley may do or cause to be done by virtue of this Irrevocable Proxy. McNulty further understands and agrees that this Irrevocable Proxy may be exercised by Markley for the period beginning the date hereof and ending on the earlier of (i) June 1, 2000 or (ii) any time after June 1, 1999 if it is determined by the Board of Directors of the Corporation that the Agreement is no longer in the best interest of the Company. This Irrevocable Proxy encompasses Two Hundred Four Thousand Seven Hundred Fifty (204,750) shares only of the Common Stock owned by McNulty on this date and not the full holdings of McNulty. This Irrevocable Proxy is coupled with an interest and shall remain in full force and effect and, shall be enforceable against any donees, devisees, transferees, or assignees of the undersigned. This Irrevocable Proxy shall be binding upon and be enforceable against McNulty and his heirs, legal and personal representatives, successors, and assigns. In the event that Markley is unable to exercise the rights granted by this Irrevocable Proxy because of death or disability, McNulty hereby appoints Doug Jennings as the successor proxy holder to Markley, entitled to exercise all of the rights of Markley under the premises. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this 1st day of June, 1998. /s/ Robert J. McNulty ----------------------------- Robert J. McNulty Agreed and Accepted this 1st day of June, 1998 /s/ John Markley - -------------------------- John Markley EX-10.20 7 EMPLOYMENT AGREEMENT BETWEEN CO. & JOHN MARKLEY 1 EXHIBIT 10.20 EMPLOYMENT AGREEMENT BETWEEN SHOPPING.COM AND JOHN MARKLEY JUNE 1, 1998 2 AGREEMENT This agreement is made on June 1, 1998 between John H. Markley. (JHM), an individual residing in California, and SHOPPING.COM (S.C.) a California Corporation. John H. Markley has accepted the position of President and Chief Executive Officer of Shopping.com and Shopping.com wishes to employ the services of JHM. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: ARTICLE I TERM 1. 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. Employer may terminate this Agreement at any time for "Cause" with or without notice. For purposes of the Agreement, the term "Cause" shall mean any of the following: (i) Employee's willful breach or habitual neglect of the duties and obligations required of him, either expressly or impliedly by the terms of the Agreement; (ii) Employee's failure to perform his duties in a manner consistent with good business judgment, or in the best interests of Employer; (iii) The event of Employee being charged by any federal, state, or local authority with act of dishonesty, any act involving public ridicule or moral 3 turpitude, or an act constituting a felony, and Employee either being convicted or entering a plea of guilty or nolo contendere; or (iv) Employee's commission of a fraud, embezzlement, or misappropriation, whether or not a criminal or civil charge is filed in connection therewith. ARTICLE II SERVICES JHM shall provide executive management for the promotion, strategic planning, marketing, geographic expansion, financing, and general management of S.C's business. JHM will devote substantially all of his business time to the operation of S.C. JHM shall report directly to the Board of Directors. JHM agrees to obtain, at S.C's expense, key man life insurance of $1.0 million with the company as the beneficiary. ARTICLE III COMPENSATION JHM shall receive a bi-weekly base compensation of $6,735 during the period commencing June 1, 1998 and ending May 31, 1999. For the period commencing June 1, 1999 through May 31, 2000 the bi-weekly base compensation shall be $9,615. For period commencing June 1, 2000 through May 31, 2001 the bi-weekly base compensation shall be $11,540. Actual business expenses will be 100% reimbursed by S.C. JHM will document all expenses on an approved expense form. S.C has authorized a $1000 per month auto allowance and a twelve month housing allowance of $1500 per month. S.C agrees to provide health and life insurance at the company's expense. In 4 addition to the above, JHM will participate in a formula bonus which will provide for the opportunity to receive an amount equal 100% of JHM base compensation for exceeding the Shopping.com annual business plan net profit. The incentive plan shall be approved annually by the Board of Directors. ARTICLE IV NON-DISCLOSURE AND SECRECY 1. JHM agrees that, during the term of this Agreement, and at all times thereafter, it will keep and cause all S.C. information in strictest confidence and will not either directly or indirectly use or allow to be used for personal 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 JHM. JHM 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, under circumstances involving no breach of this Agreement. JHM agrees that all Trade Secrets and Confidential Information are and shall be the 5 property of S.C. regardless of whether conceived or developed by JHM pursuant to the Services. To that end, JHM hereby assigns to S.C. all rights and all Trade Secrets and proprietary information developed by JHM in providing the Services. 2. Upon termination or earlier expiration of this Agreement JHM 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 JHM (s) possession or control. ARTICLE V MISCELLANEOUS 1. INJUNCTIVE RELIEF JHM 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 JHM 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 JHM 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 JHM. 3. AMENDMENT No variation of this Agreement shall be deemed valid unless in writing and signed by the parties hereto. 6 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 JHM 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. 7. ASSIGNMENT This Agreement may not be assigned by JHM 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 JHM hereby agrees that any documents produced with respect to the business of S.C shall be marked "Confidential" and "Property of Shopping.com" whether those documents are produced by JHM or by a vendor or party chosen by JHM. 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 7 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. 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 this Agreement. 12. 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 contrued against the drafter. Agreed to: Date: May 29, 1998 /s/ JOHN H. MARKLEY -------------------------------- John H. Markley /s/ ED BRADLEY /s/ FRANK W. DENNY ------------------------------ -------------------------------- Shopping.com Shopping.com By: Ed Bradley By: Frank W. Denny /s/ KRISTINE E. WEBSTER ----------------------------- Shopping.com By: Kristine E. Webster EX-10.21 8 TERMINATION AND BUYOUT AGREEMENT 1 TERMINATION AND BUY-OUT AGREEMENT --------------------------------- THIS TERMINATION AND BUY-OUT AGREEMENT ("Agreement") is entered into effective as of the 1st day of June, 1998, by and between SHOPPING.COM, INC., a California corporation (formerly known as the Shopper's Source, Inc.) (the "Company") and ROBERT J. MC NULTY (an "Individual"). WHEREAS, the parties entered into the Employment Agreement effective as of May 1, 1997, a copy of which is attached hereto as Exhibit "A", and incorporated herein by this reference ("Original Agreement"), under which Executive was employed as the Chief Executive Officer and President of the Company; WHEREAS, the Company and Executive now desire to terminate the Original Agreement under the terms and conditions as hereinafter set forth. NOW, THEREFORE, the parties hereto agree as follows: 1. Termination. The parties hereby agree that the Original Agreement is terminated effective as of June 1, 1998 ("Effective Date"). 2. Payment of Wages. Executive represents and agrees that he has received all sums owed to him by the Company, including but not limited to wages, earned but unused vacation pay, and any other payments and/or benefits to which he is entitled under the Original Agreement through the Effective Date, and otherwise under Company policy, and/or California law. 3. Cash Consideration. In consideration for agreeing to terminate the original agreement under the terms hereof, Executive shall receive a total of Five Hundred Thousand Dollars ($500,000) in cash ("Cash Consideration"), payable under the following schedule: $100,000 on or before July 31, 1998; and $50,000 on or before the last day of each succeeding fiscal quarter of the Company, beginning October 31, 1998, until the Cash Consideration is fully paid. Notwithstanding the foregoing, 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, Executive shall have the option of accelerating any remaining payments of Cash Consideration due under this Section 3, to be paid in a lump sum, upon thirty (30) days written notice to the Company. On the Effective Date, Executive shall cease to be an employee of Company for all purposes, including but not limited to California employment and labor laws, and California and Federal tax purposes. All Cash Consideration paid under this Agreement is agreed to be paid under the terms of this Contract, and is not paid to Executive as an employee of the Company. Therefore, Company shall not be obligated to, and shall not, withhold any amounts from the Cash Consideration for payment of employment or withholding taxes, and Executive is solely responsible for all taxes which may be due as a result of payment of the Cash Consideration. 2 4. Stock Options. As additional consideration under this Agreement, Executive shall be granted the option to purchase One Hundred Fifty Thousand (150,000) shares of the common stock of the Company, commencing on the effective date of this Agreement, and ending five (5) years thereafter, for a purchase price of $16 per share, and otherwise pursuant to the terms of the Stock Option Agreement, a copy of which is attached hereto as Exhibit "B", and incorporated herein by this reference. 5. Continuing Indemnification of Executive by Company. It is further understood and agreed to between the parties that Executive shall continue to be indemnified for his actions or omissions during the period he was a duly-elected director and officer of the Company, to the fullest extent permitted under California law and as more specifically set forth in Article V of the Company's Articles of Incorporation; and in particular, the Company shall indemnify McNulty as a duly-elected director and officer of the Company with respect to any and all pending lawsuits against him involving his acts or omissions in such capacity or capacities and against any such future lawsuits that may be filed. 6. Release of Company by Executive. Executive hereby releases and forever discharges Company, its successors, representatives, assigns, agents, transferees, managers, members, principals, employees, servants, and attorneys, and each of them, of and from any and all claims, debts, liabilities, demands, obligations, costs, expenses, damages, actions and causes of action of whatsoever kind or nature, whether known or unknown, anticipated or unanticipated, based on, arising out of or in connection with anything whatsoever done, omitted or suffered to be done at any time prior to the date of this Agreement, including but not limited to any and all claims, debts, liabilities, demands, obligations, costs, expenses, damages, actions and causes of action of whatsoever kind or nature, whether known or unknown, anticipated or unanticipated, based on, arising out of or in connection with any of the payments due, or matters or facts alleged or set forth in the Original Agreement, the Recitals above, or in any way relating to Executive's employment with the Company. 7. Release of Executive by Company. Company hereby releases and forever discharges Executive, its heirs, successors, representatives, assigns, agents, transferees, principals, shareholders, employees, servants, and attorneys, and each of them, of and from any and all claims, debts, liabilities, demands, obligations, costs, expenses, damages, actions and causes of action of whatsoever kind or nature, whether known or unknown, anticipated or unanticipated, based on arising out of or in connection with anything whatsoever done, omitted or suffered to be done at any time prior to the date of this Agreement, including but not limited to any and all claims, debts, liabilities, demands, obligations, costs, expenses, damages, actions and causes of action of whatsoever kind or nature, whether known or unknown, anticipated or unanticipated, based on, arising out of or in connection with any of the matters or facts alleged or set forth in the Original Agreement, the Recitals above, or in any way relating to Executive's employment with the Company. 2 3 8. Full and Final Release. Each party understands that Section 1542 of the Civil Code of California reads as follows: "1542. (Certain claims not affected by general release.) A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Each party hereby expressly waives Section 1542 of the California Civil Code. It is further understood and agreed that this full and final release is intended to cover and does cover all and any future damages described or arising out of the facts alleged in the lawsuit referenced in the Recitals of this Agreement not known, or which may later develop, or be discovered, including the effects or consequences thereof and including all causes of action therefor. 9. Ownership of Claims. The parties to this Agreement warrant and represent that they are the only persons or entities which have any interest in any of the matters herein compromised or released, and that none of such claims, causes of action, costs or demands, or any part thereof, have been assigned, granted or transferred in any way to any other person. 10. Definitions. Unless otherwise defined herein, certain definitions used in this Agreement have the same meaning set forth for such terms in the Original Agreement. 11. Governing Law. It is understood and agreed that the construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of California, without giving effect to principles of conflict of laws. The parties hereto agree that the California courts shall have jurisdiction over matters arising relating to this Agreement, and that the venue for any such actions shall be Orange County, California. 12. Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or enforceability of any one or more of the provisions hereof shall not affect the validity and enforceability of the other provisions hereof. 13. Entire Agreement. This Agreement contains the entire agreement and understanding by and among the parties hereto with respect to the subject matter hereof, and no representations, promises, agreements, or understandings, written or oral, not herein contained shall be of any force or effect. 14. Waivers and Amendments. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege 3 4 hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 15. Captions. The captions appearing in this Agreement are inserted only as a matter of convenience and as a reference and in no way define, limit or describe the scope or intent of this Agreement or any of the provisions hereof. 16. Further Instruments and Actions. The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 17. Notices. All notices, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person, or by United States mail, certified or registered, return receipt requested, or otherwise actually delivered to the addresses set forth on the signature page hereof or at such address as may have been furnished by such person in writing to the other parties. Any such notice, demand or other communication shall be deemed to have been given on the date delivered or as of the date mailed, as the case may be. 18. Attorneys' Fees. If legal action is instituted by any party to enforce the terms of this Agreement, the prevailing party in such action or proceedings shall be entitled to reasonable attorneys' fees and costs of such action in addition to any other award, including any such costs of appeal. 19. Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 20. Representation by Counsel. Each party hereby agrees and acknowledges that (i) he and 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 this Agreement. 21. 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. 4 5 IN WITNESS WHEREOF, the Company and Executive have executed this Agreement, effective as of the day and first above written.
ADDRESSES: COMPANY: - ---------- -------- 21014 E. Coast Highway SHOPPING.COM Garden Level a California Corporation Corona Del Mar, CA 92625 Dated: 6-1-98 By: /s/ Frank W. Denny ---------------- ------------------------------ Frank W. Denny, Chairman of the Board and Compensation Committee Member Dated: 6-1-98 By: /s/ Edward Bradley ---------------- ------------------------------ Edward Bradley, Compensation Committee Member and Director Dated: 6-1-98 By: /s/ Kristine E. Webster ---------------- ------------------------------ Kristine E. Webster, Secretary 2401 Bayshore Drive EXECUTIVE: Newport Beach, California 92663 --------- Dated: 5-29-98 /s/ Robert J. McNulty ----------------- --------------------------------- Robert J. McNulty, an individual
5 EX-10.22 9 CONSULTING AGREEMENT BETWEEN CO. & CYBER DEPOT 1 EXHIBIT 10.22 CONSULTING AGREEMENT BETWEEN SHOPPING.COM AND CYBER DEPOT, INC. JUNE 1, 1998 2 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 3 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. 4 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, 5 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. 6 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. 7 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 8 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 EX-10.23 10 CONSULTING AGREEMENT BETWEEN CO. & STILDEN CO. 1 EXHIBIT 10.23 CONSULTING AGREEMENT BETWEEN SHOPPING.COM AND STILDEN & CO., INC. APRIL 1, 1998 2 AGREEMENT This agreement is made on April 1, 1998 between STILDEN CO., INC. (SCI), a Texas Corporation, and SHOPPING.COM (S.C.) a California Corporation. Stilden Co. Inc. is in the consulting business and Shopping.com wishes to employ the consulting services of SCI. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: ARTICLE I TERM 1. The term of this agreement shall be for a period of two years commencing April 1, 1998 and ending on March 31,2000. The contract will automatically be renewed in one-year increments unless either party terminates via giving written notice by January 31, 1998 each year starting with January 31, 2000. ARTICLE II SERVICES SCI shall provide general services relating to the operation, promotion and financing of S.C's business. SCI shall also provide specific consulting service on special projects as assigned by the Board of Directors and /of the Chief Executive Officer of the company SCI shall work a minimum of 80 hours per month on matters directly related to S.C's business. 3 ARTICLE III FEES SCI shall receive $7000 monthly fee, which will be invoiced to S.C. on the first of each succeeding month. S.C. agrees to pay SCI invoices by the 10th of each succeeding month. Actual business expenses will be 100% reimbursed by S.C. SCI will document all expenses on an approved expense form. SCI will invoice expenses monthly and S.C. shall reimburse remitted expenses by the 10th day of each succeeding month. S.C. has authorized a $1600 per month housing allowance for twelve months, which will be detailed on the monthly invoice. ARTICLE IV NON-DISCLOSURE AND SECRECY 1. SCI agrees that, during the term of this Agreement, and at all times thereafter, it will keep and cause all group consultants to keep all S.C. information in strictest confidence and will not itself either directly or indirectly use of 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 SCI. SCI 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, under circumstances involving no breach of this Agreement. SCI agrees that all Trade Secrets 4 and Confidential Information are and shall be the property of S.C. regardless of whether conceived or developed by SCI pursuant to the Services. To that end, SCI hereby assigns to S.C. all rights and all Trade Secrets and proprietary information developed by SCI in providing the Services. 2. Upon termination or earlier expiration of this Agreement SCI 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 SCI (s) possession or control. ARTICLE V COVENANT NOT TO COMPETE 1. SCI hereby agrees that during the term of this Agreement and for a period of three (3) years following the expiration of this Agreement, it will not be directly or indirectly engaged in any business in any form or fashion including partner, consultant, controlling stockholder, joint venture, or employee of any business which may compete, directly or indirectly, with the business as contemplated by the Concept of S.C. within the state of California without prior written agreement from S.C. It is the desire and intent of the parties to this Agreement that the terms and provisions for this Article be enforced to the fullest extent permissible under the law and public policy. If any element of this Article is adjudicated to be invalid or unenforceable, such deletion or reformation is to apply only with respect to the operation of this Article in the particular jurisdiction in which such adjudication is made. SCI specifically acknowledges and agrees that the limitations as to time, geographical area and scope of activity as set forth in this Article V are reasonable and do not impose a greater restraint than is necessary in SCI's sole opinion to protect the good will and other business interest of S.C given the terms and conditions of this Agreement with respect to the Services and Concept. 5 ARTICLE VI MISCELLANEOUS 1. INJUNCTIVE RELIEF SCI acknowledges and agrees that any breach of obligations to be performed by and pursuant to Articles IV and V is likely to result in irreparable harm to S.C and SCI 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 SCI 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 SCI. 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 Argentina. 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. INDEPENDENT CONTRACTORS SCI hereby acknowledges and agrees that it is an independent Contractor with respect to the Services to be rendered and performed pursuant to this Agreement and that no terms or provisions of this Agreement shall be implied to create an employer/employee relationship between S.C and SCI. 7. INDEMNITY AND HOLD HARMLESS SCI agrees to indemnify and does hold harmless S.C 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 breach of the nondisclosure, secrecy and/or covenant not to compete terms and provisions made part of the Agreement. 6 8. ASSIGNMENT This Agreement may not be assigned by SCI 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. 9. 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 SCI or by a vendor chosen by SCI. 10. 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. 11. 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. 7 Signed by each party as indicated below, to be effective April 1, 1998. SHOPPING.COM: STILDEN CO. INC.: /s/ ROBERT MCNULTY /s/ FRANK W. DENNY - ---------------------------- ---------------------------- Robert McNulty Frank W. Denny President President 7514 Reindeer Trail San Antonio, Texas 78238 EX-20.2 11 LETTER OF RESIGNATION FROM ROBERT J. MCNULTY 1 EXHIBIT 20.2 RESIGNATION LETTER OF ROBERT J. MCNULTY DATED JUNE 1, 1998 2 [LETTERHEAD OF SHOPPING.COM] June 1, 1998 To: The Board of Directors of Shopping.com, Inc. From: Robert J. McNulty It is with deep regret that I find myself writing this letter. Although I continue to enjoy your full support and appreciate that the action I have decided to take was neither requested nor recommended by any of you, I must tender my resignation as President and Chief Executive Officer as well as member of the Board of Directors of the Company effective June 1, 1998. After three years of hard work in conceiving and developing Shopping.com, it is most gratifying to see that the company has become the internet retailer. No doubt, the company has faced a number of challenges in its path of success. In addition to being an ongoing topic of yellow journalism, the company has been subject to an orchestrated attack by short sellers who evidently got caught in a squeeze. It appears that there is absolutely no limit to the abuses the short sellers will employ in order to exploit and damage our company. From the filing of lawsuits containing false allegations to the manipulation of the offices of a United States Senator to pressure the Securities and Exchange Commission to suspend the trading of the company's stock, the short sellers conduct matches the reprehensible business they are in--destroying companies rather than building them as I have done. Although the courts have summarily thrown out the short sellers' frivolous actions, it appears that the Securities and Exchange Commission has yet to investigate the true market manipulators. Rather than deflecting attention from profiteers whose sole agenda is avarice, the Securities and Exchange Commission should return to the course chartered by Congress, protecting shareholders and prosecuting the short sellers who have violated the law. I firmly believe that the vast majority of Shopping.com's shareholders are pleased with the value that has been created, the putative class actions' allegations to the contrary notwithstanding. In order for the company to continue on its path of success, it will need to raise additional capital from institutional investors and eventually become a company that is listed on NASDAQ. So as to expedite accomplishing these goals, I have decided to resign. I trust that my stewardship has laid the foundation for further growth which inures to the benefit of our shareholders. It has been a pleasure to work with talented and loyal staff at Shopping.com. I wish everyone the best of success. Very truly yours, /s/ Robert J. McNulty ----------------------------- Robert J. McNulty EX-99.1 12 PRESS RELEASE DATED JUNE 5, 1998 1 EXHIBIT 99.1 PRESS RELEASE DATED JUNE 5, 1998 2 SHOPPING.COM NAMES JOHN H. MARKLEY PRESIDENT & CHIEF EXECUTIVE OFFICER June 5, 1998 6:00 AM Corona del Mar, CA., June 5, 1998/ -- Following the resignation of founder and President Chief Executive Officer Robert J. McNulty as the companies President, Chief Executive Officer and member of the Board of Directors, Shopping.com (OTC, IBUY), today announced the addition of Mr. John H. Markley in the position of President and Chief Executive Officer and Director. "The Company is well positioned for the future with a strong management team and Board of Directors" stated Robert J. McNulty. "With John Markley as President and Chief Executive Officer the company will have the opportunity to reach its full potential in the burgeoning Internet marketplace." "The Board of Directors of Shopping.com believe that John Markley is a strong leader able to take the company to the next plateau." Stated Frank Denny, Chairman of the Board of Shopping.com. "We are pleased to have John join this team of professionals." Mr. Markley has over 25 years experience in the retail industry and has demonstrated expertise in directing corporate activities of public corporations as well as positioning start up companies for growth and expansion. Mr. Markley is the former Chairman of the Board and Chief Executive Officer of Pay N' Pak Home Centers a regional chain of 102 Home Improvement Centers in six Western states with annual sales in excess of $498 million. Mr. Markley also held the position of President and Chief Executive Officer of the W.R. Grace Western Region Home Center Division, building and managing a regional chain of 94 Home Improvement Centers operating in six Western states with annual sales in excess of $450 million. Prior to this, Mr. Markley was Executive Vice President & General Manager of Cashways Building Centers, a chain of 12 Home Improvement stores operating in three Western states with annual sales in excess of $100 million. ABOUT SHOPPING.COM Shopping.com, headquartered in Corona del Mar, CA, is an online retailer offering over a million-item selection of top brand name consumer products organized by category. Targeting both the consumer and commercial markets, and utilizing state-of-the-art proprietary systems technology, Shopping.com offers Internet shopper's products, ranging from computers, books and office products to CDs, with low prices and fast delivery using direct vendor shipping, secure on-line payment protection and customer friendly check-out services to provide a user-friendly web shopping experience. Visit Shopping.com's Superstore website at www.shopping.com or for further information contact: Dr. Ogden Forbes, Chief of Knowledge and Research, (714) 640-4393, oforbes"shopping.com -----END PRIVACY-ENHANCED MESSAGE-----