ex101desimone







      EMPLOYMENT AGREEMENT   This Employment Agreement (“Agreement”) is made as of the 5th day of May, 2015 (the   “Effective Date”), between Borderfree, Inc., a Delaware corporation (the “Company”), and   Michael A. DeSimone (the “Executive”).   WHEREAS, the Company desires to continue to employ the Executive and the Executive   desires to continue to be employed by the Company on the terms contained herein.   NOW, THEREFORE, in consideration of the mutual covenants and agreements herein   contained and other good and valuable consideration, the receipt and sufficiency of which is   hereby acknowledged, the parties agree as follows:   1. Employment.   (a) Term.  The Company hereby employs the Executive, and the Executive   hereby accepts such employment on the terms set forth herein commencing as of the Effective   Date and continuing until terminated in accordance with the provisions of Section 3 (the   “Term”).   (b) Position and Duties.  During the Term, the Executive shall serve as the   Chief Executive Officer of the Company and shall have responsibilities and duties consistent   with such position as well as such additional duties as may from time to time be prescribed by   the Board of Directors of the Company (the “Board”).  The Executive shall devote his full   working time and efforts to the business and affairs of the Company.  Notwithstanding the   foregoing, the Executive may serve on other boards of directors, with the approval of the Board,   or engage in religious, charitable or other community activities as long as such services and   activities are disclosed to the Board and do not materially interfere with the Executive’s   performance of his duties to the Company as provided in this Agreement.   (c) Work Location.  During the Term, the Executive’s primary work location   will be at the Company’s headquarters in New York, New York.   2. Compensation and Related Matters.   (a) Base Salary.  During the Term, the Executive’s annual base salary shall be   five hundred fifty thousand dollars ($550,000).  The base salary rate in effect at any given time is   referred to herein as “Base Salary.”  The Base Salary shall be payable in a manner that is   consistent with the Company’s usual payroll practices for senior executives.   (b) Discretionary Bonus.  During the Term, the Executive shall be eligible to   receive an annual bonus as determined in the sole discretion of the Board or the Compensation   Committee.  The Executive’s target annual bonus shall be fifty percent (50%) of his Base Salary.   To earn an annual bonus, the Executive must be employed by the Company on the day such   bonus is paid.     





 







    2      (c) Expenses.  The Executive shall be entitled to receive prompt   reimbursement for all reasonable expenses incurred by him during the Term in performing   services hereunder, in accordance with the policies and procedures then in effect and established   by the Company for its senior executive officers.   (d) Other Benefits.  During the Term, the Executive shall be eligible to   participate in or receive benefits under the Company’s employee benefit plans in effect from   time to time, subject to the terms of such plans.   (e) Vacations.  During the Term, the Executive shall also be entitled to all   paid time off and paid holidays given by the Company to its executives.   3. Termination.  During the Term, the Executive’s employment hereunder may be   terminated without any breach of this Agreement under the following circumstances:   (a) Death.  The Executive’s employment hereunder shall terminate upon his   death.   (b) Disability.  The Company may terminate the Executive’s employment if   he is disabled and unable to perform the essential functions of the Executive’s then existing   position or positions under this Agreement with or without reasonable accommodation for a   period of 120 days (which need not be consecutive) in any 12-month period.  If any question   shall arise as to whether during any period the Executive is disabled so as to be unable to   perform the essential functions of the Executive’s then existing position or positions with or   without reasonable accommodation, the Executive may, and at the request of the Company shall,   submit to the Company a certification in reasonable detail by a physician selected by the   Company to whom the Executive or the Executive’s guardian has no reasonable objection as to   whether the Executive is so disabled or how long such disability is expected to continue, and   such certification shall for the purposes of this Agreement be conclusive of the issue.  The   Executive shall cooperate with any reasonable request of the physician in connection with such   certification.  If such question shall arise and the Executive shall fail to submit such certification,   the Company’s determination of such issue shall be binding on the Executive.  Nothing in this   Section 3(b) shall be construed to waive the Executive’s rights, if any, under existing law   including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et   seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.     (c) Termination by Company for Cause.  The Company may terminate the   Executive’s employment hereunder for Cause.  For purposes of this Agreement, “Cause” shall   mean:  (i) conduct by the Executive constituting a material act of misconduct in connection with   the performance of his duties, including, without limitation, misappropriation of funds or   property of the Company or any of its subsidiaries or affiliates; (ii) the commission by the   Executive of any felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud,   or any conduct by the Executive that would reasonably be expected to result in material injury or   reputational harm to the Company or any of its subsidiaries and affiliates if he were retained in   his position; (iii) continued non-performance by the Executive of his duties hereunder (other than   by reason of the Executive’s physical or mental illness, incapacity or disability) which has   continued for more than 30 days following written notice of such non-performance from the     





 







    3      Board; (iv) a breach by the Executive of any of the provisions contained in Section 7 of this   Agreement; (v) a material violation by the Executive of the Company’s written employment   policies; or (vi) failure to cooperate with a bona fide internal investigation or an investigation by   regulatory or law enforcement authorities, after being instructed by the Board to cooperate, or the   willful destruction or failure to preserve documents or other materials known to be relevant to   such investigation or the inducement of others to fail to cooperate or to produce documents or   other materials in connection with such investigation.   (d) Termination Without Cause.  The Company may terminate the   Executive’s employment hereunder at any time without Cause.  Any termination by the   Company of the Executive’s employment under this Agreement which does not constitute a   termination for Cause under Section 3(c) and does not result from the death or disability of the   Executive under Section 3(a) or (b) shall be deemed a termination without Cause.   (e) Termination by the Executive.  The Executive may terminate his   employment hereunder at any time for any reason, including but not limited to Good Reason.    For purposes of this Agreement, “Good Reason” shall mean that the Executive has complied   with the “Good Reason Process” (hereinafter defined) following the occurrence of any of the   following events:  (i) a material diminution in the Executive’s responsibilities, authority or   duties; (ii) a material diminution in the Executive’s Base Salary except for across-the-board   salary reductions based on the Company’s financial performance similarly affecting all or   substantially all senior executives of the Company; (iii) a material change in the geographic   location at which the Executive provides services to the Company; or (iv) the material breach of   this Agreement by the Company.  “Good Reason Process” shall mean that (i) the Executive   reasonably determines in good faith that a “Good Reason” condition has occurred; (ii) the   Executive notifies the Chairman of the Board in writing of the first occurrence of the Good   Reason condition within 60 days of the first occurrence of such condition; (iii) the Executive   cooperates in good faith with the Company’s efforts, for a period not less than 30 days following   such notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the   Good Reason condition continues to exist; and (v) the Executive terminates his employment   within 60 days after the end of the Cure Period.  If the Company cures the Good Reason   condition during the Cure Period, Good Reason shall be deemed not to have occurred.   (f) Notice of Termination.  Except for termination as specified in Section   3(a), any termination of the Executive’s employment by the Company or any such termination   by the Executive shall be communicated by written Notice of Termination to the other party   hereto.  Any Notice of Termination by the Executive shall be delivered to the Chairman of the   Board.  For purposes of this Agreement, a “Notice of Termination” shall mean a notice which   shall indicate the specific termination provision in this Agreement relied upon.   (g) Date of Termination.  “Date of Termination” shall mean:  (i) if the   Executive’s employment is terminated by his death, the date of his death; (ii) if the Executive’s   employment is terminated on account of disability under Section 3(b) or by the Company for   Cause under Section 3(c), the date on which Notice of Termination is given; (iii) if the   Executive’s employment is terminated by the Company under Section 3(d), the date of   termination noted in the Notice of Termination; (iv) if the Executive’s employment is terminated   by the Executive under Section 3(e) without Good Reason, 30 days after the date on which a     





 







    4      Notice of Termination is given, and (v) if the Executive’s employment is terminated by the   Executive under Section 3(e) with Good Reason, the date on which a Notice of Termination is   given after the end of the Cure Period.  Notwithstanding the foregoing, in the event that the   Executive gives a Notice of Termination to the Chairman of the Board, the Company may   unilaterally accelerate the Date of Termination and such acceleration shall not result in a   termination by the Company for purposes of this Agreement.   4. Compensation Upon Termination.   (a) Termination Generally.  If the Executive’s employment with the Company   is terminated for any reason, the Company shall pay or provide to the Executive (or to his   authorized representative or estate) (i) any Base Salary earned through the Date of Termination,   unpaid expense reimbursements (subject to, and in accordance with, Section 2(c) of this   Agreement); and (ii) any vested benefits the Executive may have under any employee benefit   plan of the Company through the Date of Termination, which vested benefits shall be paid and/or   provided in accordance with the terms of such employee benefit plans (collectively, the   “Accrued Benefit”).   (b) Termination by the Company Without Cause or by the Executive with   Good Reason.  During the Term, if the Executive’s employment is terminated by the Company   without Cause as provided in Section 3(d), or the Executive terminates his employment for Good   Reason as provided in Section 3(e), then the Company shall pay the Executive his Accrued   Benefit.  In addition, subject to the Executive signing a mutual separation and general release   agreement that contains mutual releases of any and all claims and where the Executive agrees not   to make any disparaging remarks about the Company (the “Separation and General Release   Agreement”), the Separation and General Release Agreement becoming irrevocable and the   Executive not breaching any of his post-employment contractual obligations to the Company:   (i) the Company shall pay the Executive an amount equal to the   Executive’s then current annual Base Salary (the “Severance Amount”); and   (ii) all stock options and other stock-based awards, if any, held by the   Executive shall continue to vest as if the Executive had remained employed by the   Company for an additional twelve (12) months following the Date of Termination; and   (iii) if the Executive was participating in the Company’s group health   plan immediately prior to the Date of Termination and elects COBRA health   continuation, then for the first twelve (12) months of COBRA health continuation, the   Executive’s premium payment shall be at the same rate that he would have paid for   health insurance had he remained  as an active employee; and   (iv) the amounts payable under this Section 4(b) shall be paid out in   substantially equal installments in accordance with the Company’s payroll practice over   twelve (12) months commencing within 60 days after the Date of Termination; provided,   however, that if the 60-day period begins in one calendar year and ends in a second   calendar year, the Severance Amount shall begin to be paid in the second calendar year   by the last day of such 60-day period; provided, further, that the initial payment shall     





 







    5      include a catch-up payment to cover amounts retroactive to the day immediately   following the Date of Termination.  Each payment pursuant to this Agreement is intended   to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-   2(b)(2).   5. Change of Control Benefits.    (a) Accelerated Vesting.  If during the Term the Company experiences a   “Change of Control,” then notwithstanding anything to the contrary in any applicable option   agreement or stock-based award agreement, all stock options and other stock-based awards held   by the Executive shall immediately accelerate and become fully exercisable or nonforfeitable as   of the Change of Control.    (b) Additional Limitation.   (i) Anything in this Agreement to the contrary notwithstanding, in the   event that the amount of any compensation, payment or distribution by the Company to   or for the benefit of the Executive, whether paid or payable or distributed or distributable   pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent   with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate   Payments”), would be subject to the excise tax imposed by Section 4999 of the Code,   then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all   of the Aggregate Payments shall be $1.00 less than the amount at which the Executive   becomes subject to the excise tax imposed by Section 4999 of the Code; provided that   such reduction shall only occur if it would result in the Executive receiving a higher After   Tax Amount (as defined below) than the Executive would receive if the Aggregate   Payments were not subject to such reduction.  In such event, the Aggregate Payments   shall be reduced in the following order, in each case, in reverse chronological order   beginning with the Aggregate Payments that are to be paid the furthest in time from   consummation of the transaction that is subject to Section 280G of the Code:  (1) cash   payments not subject to Section 409A of the Code; (2) cash payments subject to Section   409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of   benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or   payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or   (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg.   §1.280G-1, Q&A-24(b) or (c).   (ii) For purposes of this Section 5(b), the “After Tax Amount” means   the amount of the Aggregate Payments less all federal, state, and local income, excise and   employment taxes imposed on the Executive as a result of the Executive’s receipt of the   Aggregate Payments.  For purposes of determining the After Tax Amount, the Executive   shall be deemed to pay federal income taxes at the highest marginal rate of federal   income taxation applicable to individuals for the calendar year in which the determination   is to be made, and state and local income taxes at the highest marginal rates of individual   taxation in each applicable state and locality, net of the maximum reduction in federal   income taxes which could be obtained from deduction of such state and local taxes.     





 







    6      (iii) The determination as to whether a reduction in the Aggregate   Payments shall be made pursuant to Section 5(b)(i) shall be made by a nationally   recognized accounting firm selected by the Company (the “Accounting Firm”), which   shall provide detailed supporting calculations both to the Company and the Executive   within 15 business days of the Date of Termination, if applicable, or at such earlier time   as is reasonably requested by the Company or the Executive.  Any determination by the   Accounting Firm shall be binding upon the Company and the Executive.   (c) Definition of Change of Control.  For purposes of this Agreement, a   “Change of Control” will occur upon the consummation of (i) the dissolution or liquidation of   the Company, (ii) the sale of all or substantially all of the assets of the Company on a   consolidated basis to an unrelated person or entity, (iii) a merger, reorganization or consolidation   involving the Company in which the shares of voting stock of the Company outstanding   immediately prior to such transaction represent or are converted into or exchanged for securities   of the surviving or resulting entity immediately upon completion of such transaction which   represent less than 50 percent of the outstanding voting power of such surviving or resulting   entity, (iv) the acquisition of all or a majority of the outstanding voting stock of the Company in   a single transaction or a series of related transactions by a person, entity, group of persons or   group of entities, or (v) any other acquisition of the business of the Company, as determined by   the Board; provided, however, that the Company’s initial public offering, any subsequent public   offering or another capital raising event, or a merger effected solely to change the Company’s   domicile shall not constitute a “Change of Control.”   6. Section 409A.   (a) Anything in this Agreement to the contrary notwithstanding, if at the time   of the Executive’s separation from service within the meaning of Section 409A of the Code, the   Company determines that the Executive is a “specified employee” within the meaning of Section   409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive   becomes entitled to under this Agreement on account of the Executive’s separation from service   would be considered deferred compensation otherwise subject to the 20 percent additional tax   imposed pursuant to Section 409A(a) of the Code as a result of the application of Section   409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be   provided until the date that is the earlier of (i) six months and one day after the Executive’s   separation from service, or (ii) the Executive’s death.  If any such delayed cash payment is   otherwise payable on an installment basis, the first payment shall include a catch-up payment   covering amounts that would otherwise have been paid during the six-month period but for the   application of this provision, and the balance of the installments shall be payable in accordance   with their original schedule.     (b) All in-kind benefits provided and expenses eligible for reimbursement   under this Agreement shall be provided by the Company or incurred by the Executive during the   time periods set forth in this Agreement.  All reimbursements shall be paid as soon as   administratively practicable, but in no event shall any reimbursement be paid after the last day of   the taxable year following the taxable year in which the expense was incurred.  The amount of   in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect   the in-kind benefits to be provided or the expenses eligible for reimbursement in any other     





 







    7      taxable year (except for any lifetime or other aggregate limitation applicable to medical   expenses).  Such right to reimbursement or in-kind benefits is not subject to liquidation or   exchange for another benefit.   (c) To the extent that any payment or benefit described in this Agreement   constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the   extent that such payment or benefit is payable upon the Executive’s termination of employment,   then such payments or benefits shall be payable only upon the Executive’s “separation from   service.”  The determination of whether and when a separation from service has occurred shall   be made in accordance with the presumptions set forth in Treasury Regulation Section   1.409A-1(h).   (d) The parties intend that this Agreement will be administered in accordance   with Section 409A of the Code.  To the extent that any provision of this Agreement is ambiguous   as to its compliance with Section 409A of the Code, the provision shall be read in such a manner   so that all payments hereunder comply with Section 409A of the Code.  Each payment pursuant   to this Agreement is intended to constitute a separate payment for purposes of Treasury   Regulation Section 1.409A-2(b)(2).  The parties agree that this Agreement may be amended, as   reasonably requested by either party, and as may be necessary to fully comply with Section 409A   of the Code and all related rules and regulations in order to preserve the payments and benefits   provided hereunder without additional cost to either party.   (e) The Company makes no representation or warranty and shall have no   liability to the Executive or any other person if any provisions of this Agreement are determined   to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an   exemption from, or the conditions of, such Section.   7. Confidential Information, Noncompetition and Cooperation.   (a) Confidential Information.  As used in this Agreement, “Confidential   Information” means information belonging to the Company which is of value to the Company in   the course of conducting its business and the disclosure of which could result in a competitive or   other disadvantage to the Company.  Confidential Information includes, without limitation:   (i) the identity of any current or prospective customers, clients,   suppliers or vendors;   (ii) information relating to the business, products, affairs and finances   of the Company, for the time being confidential to it;   (iii) technical data and know-how relating to the business of the   Company;   (iv) any information relating to the Company’s technology, marketing   and business plans or strategies;   (v) any non-public management accounting and other similar financial   information that would typically be included in the financial statements of the Company,     





 







    8      including, without limitation, the amount of the assets, liabilities, net worth, revenues or   net income;   (vi) names and addresses of any of the Company’s customers, clients,   suppliers, vendors and employees, and details of any independent contractor or agency   arrangements of the Company;   (vii) non-public information relating to legal and professional dealings,   real property, tangible property, finances, business, and investment activities, and other   personal affairs of the Company;     (viii) any and all books, notes, memoranda, records, correspondence,   documents, computer and other discs and tapes, data listings, codes, designs, drawings   and other documents and materials (whether made or created by the Executive or   otherwise) relating to the business of the Company or any of its principals; and   (ix) any other non-public information gained in the course of the   Executive’s employment with the Company that could reasonably be expected to prove   harmful to the Company if disclosed to third parties, including without limitation, any   information that could be reasonably expected to aid a competitor or potential competitor   of the Company.     For purposes of this Agreement, Confidential Information shall not include information in the   public domain, unless due to breach of the Executive’s duties under Section 7(b).   (b) Confidentiality.  The Executive understands and agrees that the   Executive’s employment creates a relationship of confidence and trust between the Executive   and the Company with respect to all Confidential Information.  At all times, both during the   Executive’s employment with the Company and after its termination, the Executive will keep in   confidence and trust all such Confidential Information, and will not use or disclose any such   Confidential Information without the written consent of the Company, except as may be   necessary in the ordinary course of performing the Executive’s duties to the Company.   (c) Property.  All documents, records, data, apparatus, equipment and other   physical property, whether or not pertaining to Confidential Information, which are furnished to   the Executive by the Company or are produced by the Executive in connection with the   Executive’s employment will be and remain the sole property of the Company.  The Executive   will return to the Company all such materials and property as and when requested by the   Company.  In any event, the Executive will return all such materials and property immediately   upon termination of the Executive’s employment for any reason.  The Executive will not retain   with the Executive any such material or property or any copies thereof after such termination.   (d) Noncompetition and Nonsolicitation.  During the Executive’s employment   with the Company and for twelve (12) months thereafter, regardless of the reason for the   termination, the Executive (i) will not, directly or indirectly, whether as owner, partner,   shareholder, consultant, agent, employee, co-venturer or otherwise, engage, participate, assist or   invest in any Competing Business (as hereinafter defined); (ii) will refrain from directly or   indirectly attempting to employ, recruiting, hiring or otherwise soliciting, inducing or influencing     





 







    9      any person to leave employment with the Company (other than through a general solicitation not   aimed at the Company or any specific employees in the Company); and (iii) will refrain from   soliciting or encouraging any customer or supplier to terminate or otherwise modify adversely its   business relationship with the Company.  The Executive understands that the restrictions set   forth in this Section 7(d) are intended to protect the Company’s interest in its Confidential   Information and established employee, customer and supplier relationships and goodwill, and   agrees that such restrictions are reasonable and appropriate for this purpose.  For purposes of this   Agreement, the term “Competing Business” shall mean a business located in any country in   which the Company has a hub location (for its logistics facilities) or an office and which is   competitive with any business which the Company or any of its affiliates conducts at any time   during the employment of the Executive or during the payment to the Executive of any portion of   the Severance Amount.  Notwithstanding the foregoing, the Executive may own up to one   percent (1%) of the outstanding stock of a publicly held corporation which constitutes or is   affiliated with a Competing Business.   (e) Work Product.  As used in this Agreement, the term “Work Product”   means all inventions, innovations, improvements, technical information, systems, software   developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade   names, logos and all similar or related information (whether patentable or unpatentable,   copyrightable, registerable as a trademark, reduced to writing, or otherwise) which relates to the   Company’s or any of its affiliates’ actual or anticipated business, research and development or   existing or future products or services and which are or were conceived, developed or made by   the Executive (whether or not during usual business hours, whether or not by the use of the   facilities of the Company or any of its affiliates, and whether or not alone or in conjunction with   any other person) while employed by the Company together with all patent applications, letters   patent, trademark, trade name and service mark applications or registrations, copyrights and   reissues thereof that may be granted for or upon any of the foregoing.  All Work Product that the   Executive may discover, invent or originate during the Term shall be the exclusive property of   the Company, and its affiliates, as applicable, and the Executive hereby assigns all of the   Executive’s right, title and interest in and to such Work Product to the Company or its applicable   affiliate, including all intellectual property rights therein.  The Executive shall promptly disclose   all Work Product to the Company, shall execute at the request of the Company any assignments   or other documents the Company may deem necessary to protect or perfect its (or any of its   affiliate’s, as applicable) rights therein, and shall assist the Company, at the Company’s expense,   in obtaining, defending and enforcing the Company’s (or any of its affiliate’s, as applicable)   rights therein.  The Executive hereby appoints the Company as his attorney-in-fact to execute on   his behalf any assignments or other documents deemed necessary by the Company to protect or   perfect the Company’s (and any of its affiliate’s, as applicable) rights to any Work Product.   (f) Litigation and Regulatory Cooperation.  During and after the Executive’s   employment, the Executive shall cooperate fully with the Company in the defense or prosecution   of any claims or actions now in existence or which may be brought in the future against or on   behalf of the Company which relate to events or occurrences that transpired while the Executive   was employed by the Company.  The Executive’s full cooperation in connection with such   claims or actions shall include, but not be limited to, being available to meet with counsel to   prepare for discovery or trial and to act as a witness on behalf of the Company at mutually   convenient times.  During and after the Executive’s employment, the Executive also shall     





 







    10      cooperate fully with the Company in connection with any investigation or review of any federal,   state or local regulatory authority as any such investigation or review relates to events or   occurrences that transpired while the Executive was employed by the Company.  The Company   shall reimburse the Executive for any reasonable out-of-pocket expenses incurred in connection   with the Executive’s performance of obligations pursuant to this Section 7(f).   (g) Injunction.  The Executive agrees that it would be difficult to measure any   damages caused to the Company which might result from any breach by the Executive of the   promises set forth in this Section 7, and that in any event money damages would be an   inadequate remedy for any such breach.  Accordingly, subject to Section 8 of this Agreement, the   Executive agrees that if the Executive breaches, or proposes to breach, any portion of this   Agreement, the Company shall be entitled, in addition to all other remedies that it may have, to   an injunction or other appropriate equitable relief to restrain any such breach without showing or   proving any actual damage to the Company.   8. Arbitration of Disputes.  Any controversy or claim arising out of or relating to this   Agreement or the breach thereof or otherwise arising out of the Executive’s employment or the   termination of that employment (including, without limitation, any claims of unlawful   employment discrimination whether based on age or otherwise) shall, to the fullest extent   permitted by law, be settled by arbitration in any forum and form agreed upon by the parties or,   in the absence of such an agreement, under the auspices of the American Arbitration Association   (“AAA”) in New York, New York in accordance with the Employment Dispute Resolution   Rules of the AAA, including, but not limited to, the rules and procedures applicable to the   selection of arbitrators.  Judgment upon the award rendered by the arbitrator may be entered in   any court having jurisdiction thereof.  This Section 8 shall be specifically enforceable.   Notwithstanding the foregoing, this Section 8 shall not preclude either party from pursuing a   court action for the sole purpose of obtaining a temporary restraining order or a preliminary   injunction in circumstances in which such relief is appropriate; provided that any other relief   shall be pursued through an arbitration proceeding pursuant to this Section 8.   9. Consent to Jurisdiction.  To the extent that any court action is permitted consistent   with or to enforce Section 8 of this Agreement, the parties hereby consent to the jurisdiction of   the Supreme Court of New York (New York County) and the United States District Court for the   Southern District of New York.  Accordingly, with respect to any such court action, the   Executive (a) submits to the personal jurisdiction of such courts; (b) consents to service of   process; and (c) waives any other requirement (whether imposed by statute, rule of court, or   otherwise) with respect to personal jurisdiction or service of process.   10. Integration.  This Agreement constitutes the entire agreement between the parties   with respect to the subject matter hereof and supersedes all prior agreements between the parties   concerning such subject matter other than any agreement(s) the Executive may have regarding   post-employment obligations to the Company which are more favorable to the Company than   those reflected herein and any such agreement(s) are hereby incorporated by reference, as   applicable.     





 







    11      11. Withholding.  All payments made by the Company to the Executive under this   Agreement shall be net of any tax or other amounts required to be withheld by the Company   under applicable law.   12. Successor to the Executive.  This Agreement shall inure to the benefit of and be   enforceable by the Executive’s personal representatives, executors, administrators, heirs,   distributees, devisees and legatees.  In the event of the Executive’s death after his termination of   employment but prior to the completion by the Company of all payments due him under this   Agreement, the Company shall continue such payments to the Executive’s beneficiary   designated in writing to the Company prior to his death (or to his estate, if the Executive fails to   make such designation).   13. Successor to Company.  This Agreement shall inure to the benefit of and be   enforceable by any successor (whether direct or indirect, by purchase, merger, consolidation or   otherwise) to all or substantially all of the business or assets of the Company.   14. Enforceability.  If any portion or provision of this Agreement (including, without   limitation, any portion or provision of any section of this Agreement) shall to any extent be   declared illegal or unenforceable by a court of competent 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.   15. Survival.  The provisions of this Agreement shall survive the termination of this   Agreement and/or the termination of the Executive’s employment to the extent necessary to   effectuate the terms contained herein.   16. Waiver.  No waiver of any provision hereof shall be effective unless made in   writing and signed by the waiving party.  The failure of any party to require the performance of   any term or obligation of this Agreement, or the waiver by any party of any breach of this   Agreement, shall not prevent any subsequent enforcement of such term or obligation or be   deemed a waiver of any subsequent breach.   17. Notices.  Any notices, requests, demands and other communications provided for   by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally   recognized overnight courier service or by registered or certified mail, postage prepaid, return   receipt requested, to the Executive at the last address the Executive has filed in writing with the   Company or, in the case of the Company, to the Chairman of the Board.   18. Amendment.  This Agreement may be amended or modified only by a written   instrument signed by the Executive and by a duly authorized representative of the Company.   19. Governing Law.  This is a New York contract and shall be construed under and be   governed in all respects by the laws of the State of New York, without giving effect to the   conflict of laws principles of such state.  With respect to any disputes concerning federal law,   such disputes shall be determined in accordance with the law as it would be interpreted and   applied by the United States Court of Appeals for the Second Circuit.     





 







    12      20. Counterparts.  This Agreement may be executed in any number of counterparts,   each of which when so executed and delivered shall be taken to be an original; but such   counterparts shall together constitute one and the same document.  In addition, a PDF or   facsimile of a signature shall be deemed an original.   IN WITNESS WHEREOF, the parties have executed this Agreement effective on the   date and year first above written.   BORDERFREE, INC.   s/ Edwin Neumann    By: Edwin Neumann   Its: CFO         /s/ Michael A. DeSimone    Michael A. DeSimone