{"id":39389,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-net-grocer-inc-and-richard-falcone.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-net-grocer-inc-and-richard-falcone","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-net-grocer-inc-and-richard-falcone.html","title":{"rendered":"Employment Agreement &#8211; Net Grocer Inc. and Richard Falcone"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n         AGREEMENT made as of January 13, 1997, between Net Grocer Inc., a\ncorporation with its principal office at 919 Third Avenue, New York, New York\n10022 (the 'Company'), and Richard Falcone, an individual residing at the\naddress indicated in the payroll records of the Company from time to time (the\n'Executive'). \n         WHEREAS, the parties desire to enter into this Agreement in order to\nassure the Company of the services of the Executive and to set forth the duties\nand compensation of the Executive, all upon the terms and conditions\nhereinafter set forth;\n         NOW, THEREFORE, in consideration of the foregoing and of the mutual\npromises, representations and covenants contained herein, the parties hereto\nagree as follows:\n\n         1. Duties. The Company shall employ the Executive, and the Executive\nshall serve, as Chief Financial Officer and Vice President of Operations of the\nCompany during the Employment Term (as hereinafter defined). During the\nEmployment Term, Executive shall perform such duties and functions as the\nCompany's Board of Directors or Chief Executive Officer shall from time to time\ndetermine and Executive shall comply in the performance of his duties with the\npolicies of, and be subject to, the direction of the Board of Directors and the\nChief Executive Officer of the Company.\n\n         Except as may be expressly otherwise consented to in writing by the\nBoard of Directors or the Chief Executive Officer of the Company, Executive\ncovenants and agrees to and shall devote his full working time, attention and\nefforts toward the performance of his duties and responsibilities hereunder.\nExecutive shall not, directly or indirectly, without the prior consent of the\nCompany's Board of Directors, as owner,\n\n\n\n\n\npartner, joint venturer, stockholder, employee, corporate officer or director,\nengage or become financially interested in, or be concerned with any other\nduties or pursuits which interfere with the performance of his duties\nhereunder, or which even if non-interfering, may be inimical or contrary to\nthe best interests of the Company.\n\n         2. Term. The term of this Agreement and the term of employment (the\n'Employment Term') of the Executive shall continue for four years from the date\nhereof (the 'Termination Date') unless sooner terminated in accordance with the\nterms hereof; provided, however, that the Termination Date shall be extended\nautomatically for successive one year periods unless either party hereto gives\nthe other such party written notice of its or his intention to terminate this\nAgreement thirty (30) days prior to the Termination Date (or, if applicable,\nany extension of the Termination Date).\n\n         If the Company terminates this Agreement without cause (as defined in\nSection 5 hereof) at any time other than as set forth in Section 7 hereof, the\nparties hereto agree that damages to the Executive shall be difficult to\nascertain in any such event, but in order to limit the liability of the Company\nin any such event, the Executive shall be entitled to receive as liquidated\ndamages and not as a penalty the base salary of the Executive for a period of\nsix months from any such date of termination.\n\n         The Executive is entitled to terminate this Agreement, without any\nliability, upon ninety (90) days prior written notice given to the Company\n(other than liabilities, if any, resulting from violations of this Agreement by\nthe Executive occurring prior to such termination or from a violation of\nSections 8 or 9 of this Agreement after such termination and other than as\nprovided in Section 3(c) above).\n                                      -2-\n\n\n\n\n         3. Compensation, etc..\n            a. Salary. In each of the four years of the Employment Term, the \nExecutive shall receive a minimum base salary at the rate of $125,000 per annum \nas well as such bonuses as may be authorized from time to time by the Board of \nDirectors as provided in Section 3(b) hereof. The Executive shall be entitled to\nsuch increases in base salary as may be determined by the Company's Board of \nDirectors from time to time in its sole and absolute discretion. The Executive's\ncompensation shall be payable in installments in accordance with the Company's\nnormal salary payment policies, and shall be subject to such payroll deductions \nas are required by law.\n\n            b. Bonus. The bonus, if any, payable to Executive shall be \ndetermined solely by the Company's Board of Directors from time to time, based\non the Company's evaluation of the performance by Executive of his services to\nthe Company and on the revenues, profits, and other measures of Company\nperformance.\n\n            c. Senior Management Option Plan. The Executive shall be entitled to\nparticipate in a 'senior management option plan' (the 'Plan') that the Company\nintends to establish. Under the Plan, if established, the Executive shall be\nentitled to receive an option (the 'Option') to purchase a total of 334 shares \nof Company stock available for issuance under the Plan at an exercise price of \ntwo hundred dollars ($200) per share. Except as specifically provided otherwise \nherein, 20% of the Option (67 shares) will be immediately exercisable (the \n'Initial Portion') and the remainder of the Option (the 'Remainder') will\nbecome exercisable in accordance with the following schedule based upon the \nperiod of the Executive's continuous employment or service with the Company \nfollowing the date hereof:\n\n                                      -3-\n\n\n\n\n                                                                    Cumulative\nPeriod                   Incremental         Incremental            Percentage\nof Continuous            Percentage of       Number of              of\nEmployment\/              Remainder           Shares                 Remainder\nService                  Exercisable         Exercisable            Exercisable\n\nLess than 1 year               0%                 0                     0%\n\n1 year                        25%                67                    25%\n\n2 years                       25%                67                    50%\n\n3 years                       25%                67                    75%\n\n4 or more years               25%                66                    100%\n\n\n         Any agreement entered into between the Company and Executive pursuant\nto the Plan relating to the Option shall provide that:\n\n                  (1) if (i) the Company terminates this Agreement for any\n         reason other than cause (as defined in Section 5 hereof) or (ii)\n         Executive terminates this Agreement and\/or his employment with the\n         Company any time on or after the first anniversary of the date hereof,\n         Executive shall be entitled to retain the Initial Portion and the\n         vested portion of the Remainder as calculated in accordance with the\n         schedule above, in all instances for a period of two months by which\n         time Executive must have exercised the Option or the Option (both the\n         Initial Portion and the Remainder) shall terminate; and\n\n                  (2) if (i) Executive is terminated for cause or (ii)\n         terminates this Agreement and\/or his employment with the Company at\n         any time prior to the first anniversary of the date hereof, then (x)\n         the unexercised portion of the Option shall terminate immediately and\n         Executive shall not be entitled to exercise any portion of the Option\n         (both the Initial Portion and the Remainder) so terminated; and (y)\n         the Company may, it its sole and absolute discretion,\n\n                                      -4-\n\n\n\n\n\n         repurchase any or all of the shares, if any, purchased by Executive\n         pursuant to the exercise of the Initial Portion at a per share price\n         equal to the price paid therefor by Executive for a period of up to\n         two months from the time of such termination for cause or termination\n         by Executive.\n\n                  (3) at any time after any registration statement covering an\n         initial public offering of Company stock under the Securities Act\n         shall have become effective, Executive may make a 'cashless exercise'\n         of any portion of the Option then vested, subject to the provisions\n         contained herein on permitted exercisability of the Option, such that\n         Executive shall be entitled upon exercise to that number of shares of\n         Company stock determined by multiplying the number of shares being\n         exercised by a fraction, the numerator of which shall be the\n         difference between the then current market price per share of the\n         Company stock and the Exercise Price, and the denominator of which\n         shall be the then current market price per share of the Company stock.\n\n                  d. Expenses. The Company acknowledges and agrees that the\nExecutive, in rendering the services hereunder, will be required to spend sums\nof money for travel to various locations and for the entertainment of various\npersons and representatives of companies and organizations with whom the\nCompany is having, or would like to have, business relationships. In addition\nto the base salary provided for in Section 3 hereof, the Company shall\nreimburse the Executive, upon presentation by the Executive of documented\nexpense accounts, for any travel or other reasonable out-of-pocket expenses\nincurred by the Executive in rendering the services hereunder on behalf of the\nCompany and which are incurred pursuant to the Company's expense\n\n                                      -5-\n\n\n\n\n\n\nreimbursement policies; provided however, that Executive shall be entitled to\nan advance from the Company for any single expense item greater than $500 in\namount but in no event will Executive be relieved of his obligation to properly\ndocument all expenses. In addition to the foregoing, Executive shall be\nentitled to reimbursements for expenses incurred by Executive in commuting to\nand from the Company's principal executive offices as required pursuant to\nSection 4 hereof, but in no event in an amount in excess of $5,000 per annum;\nand provided that all such commuting expenses shall be documented as set forth\nabove.\n\n                  e. Vacations. The Executive shall be entitled to 15 business\ndays of vacation under guidelines established by the Company from time to time.\nVacation time shall not cumulate from year to year.\n\n                  f. Other Benefits. The Executive shall be entitled to\nparticipate in all benefit plans generally made available to the Company's\nother employees including, but not limited to, life insurance, health\ninsurance, retirement and 401(k) plans; provided that the Company is under no\nobligation to adopt any such plan or retain any such plan, if already adopted\nor if adopted in the future.\n\n         4. Place of Performance. In connection with his employment by the\nCompany, the Executive shall be based at the principal executive offices of the\nCompany, except for travel required for Company business.\n\n         5. Termination by the Company. The Company may terminate this\nAgreement and all of the Company's obligations hereunder for 'cause.'\nTermination by the Company for 'cause' shall mean termination because of: (i)\nExecutive's refusal to perform, or willful breach or neglect of the performance\nof any of his duties or\n                                      -6-\n\n\n\n\n\n\nobligations hereunder (other than breaches of the covenants set forth in\nSections 1, 8 and 9 hereof which events are governed by clauses (vi) and (vii)\nbelow); (ii) Executive's conviction (which, through lapse of time or otherwise,\nis not subject to appeal) of any crime or offense involving money or other\nproperty of the Company or any of its subsidiaries, (iii) Executive's\nperformance of any act or his failure to act, for which if Executive were\nprosecuted and convicted, a crime or offense involving money or property of the\nCompany or any of its subsidiaries, or which would constitute a felony in the\njurisdiction involved, would have occurred, (iv) any attempt by Executive to\nimproperly secure any personal profit in connection with the business of the\nCompany or any of its subsidiaries, (v) chronic alcoholism or drug addiction\nunless, in the sole and absolute discretion of the Company, it does not\ninterfere with the performance of the Executive's duties, (vi) any breach by\nExecutive of the terms of Section 8 or 9 of this Agreement or (vii) any breach\nby Executive of the terms of Section 1 of this Agreement.\n\n         6. Death; Disability. If the Executive shall die or become\n'permanently disabled' during the term of this Agreement, this Agreement and\nall benefits hereunder shall terminate except that such termination shall not\naffect any vested rights which the Executive may have at the time of his death\npursuant to any insurance or other death benefit plans or arrangements of the\nCompany, which rights shall continue to be governed by the provisions of such\nplans and agreements. For the purposes of this Agreement, Executive shall be\ndeemed to be 'permanently disabled' if, during the term hereof, because of ill\nhealth, physical or mental disability, or for other causes beyond Executive's\ncontrol, Executive shall have been unable or unwilling, or shall have failed\n\n                                      -7-\n\n\n\n\n\n\nto perform his duties hereunder for one hundred twenty (120) consecutive days\nor for a total period of one hundred twenty (120) days, whether consecutive or\nnot.\n         7. Severance in the Event of a Change in Control\n\n         a. In the event that (i) the Company terminates the employment of the\nEmployee (other than for 'cause' as defined in Section 5) within the 12 months\nimmediately succeeding a Change in Control of the Company (as defined below),\n(ii) the Employee terminates his employment with the Company within the 12\nmonths immediately succeeding a Change in Control of the Company as a result of\na material change in the Employee's position within the Company or a\nsignificant modification to the Employee's working conditions or terms of\nemployment with the Company, the Company shall pay to the Employee the greater\nof (x) the then effective base salary of the Employee or (y) the effective base\nsalary of the Employee at the time of the Change in Control of the Company, in\neither instance for a period of one year from any such date of termination (the\n'Severance Amount').\n\n         b. Notwithstanding anything in paragraph 7a to the contrary, the\nEmployee shall not be entitled to the Severance Amount if the Employee's\nemployment with the Company is terminated (i) as a result of the death of the\nEmployee or the Employee being permanently disabled (as defined in Section 6)\nor (ii) for 'cause' (as defined in Section 5).\n\n         c.                (i) For purposes of this Agreement, 'Change in\n                           Control of the Company' shall be deemed to occur if\n                           (w) there shall be consummated (A) any consolidation\n                           or merger of the Company in which the Company is not\n                           the continuing or surviving corporation\n\n                                      -8-\n\n\n\n\n                           or pursuant to which shares of the Company's common\n                           stock, would be converted into cash, securities or\n                           other property, other than (i) a merger of the\n                           Company in which the holders of the common stock\n                           immediately prior to the merger have the same\n                           proportionate ownership of common stock of the\n                           surviving corporation immediately after the merger,\n                           (ii) a transaction involving American Value Brands\n                           Inc. ('AVB') pursuant to which the Company's\n                           stockholders receive shares of AVB's Common Stock or\n                           of the surviving entity to the transaction based\n                           upon a valuation for the Company's Common Stock\n                           determined by the Company's Board of Directors in\n                           its sole discretion, or (B) any sale, lease,\n                           exchange or other transfer (in one transaction or a\n                           series of related transactions) of all, or\n                           substantially all, of the assets of the Company, or\n                           (x) the stockholders of the Company shall approve\n                           any plan or proposal for liquidation or dissolution\n                           of the Company, or (y) any person (as such term is\n                           used in Section 13(d) and 14(d)(2) of the Securities\n                           Exchange Act of 1934, as amended (the 'Exchange\n                           Act')) who, at the time of the execution of this\n                           Agreement, does not own 5% or more of the Company's\n                           outstanding Common Stock, shall become the\n                           beneficial owner (within the meaning of Rule 13d-3\n                           under the Exchange Act) of 40% or more of the\n                           outstanding Common Stock other than pursuant to a\n                           plan or arrangement entered into by such person and\n                           the\n\n                                      -9-\n\n\n\n\n                           Company, or (z) during any period of two consecutive\n                           years commencing on the date hereof, individuals who\n                           at the beginning of such period constitute the\n                           entire Board of Directors shall cease for any reason\n                           to constitute a majority thereof unless the\n                           election, or the nomination for election by the\n                           Company's stockholders, of each new director was\n                           approved by a vote of at least two-thirds of the\n                           directors then still in office who were directors at\n                           the beginning of the period; provided, however, that\n                           none of the transactions set forth above shall be\n                           deemed to be a Change in Control of the Company\n                           unless each of Frederick R. Adler and Uri Evan shall\n                           cease to own other such Change of Control at least\n                           80% of the securities of the Company owned by such\n                           person prior to such Change in Control.\n\n         8. Protection of Confidential Information. The Executive acknowledges\nthat his employment by the Company will, throughout the term of this Agreement,\nbring him in contact with many confidential affairs of the Company not readily\navailable to the public, and plans for future developments. In recognition of\nthe foregoing, the Executive covenants and agrees that he will not use or\ndisclose to anyone outside of the Company, as the case may be, any material\nconfidential matters of the Company, which are not otherwise in the public\ndomain, either during or for a period of twenty-four months after the\ntermination of his employment with the Company, except with the Company's\nwritten consent or as required by court order, law or subpoena, or other legal\ncompulsion to disclose.\n\n                                      -10-\n\n\n\n\n         9. Covenant Not To Compete.\n\n         a. The Executive agrees that, without the Company's prior written\nconsent which may be withheld in the Company's sole and absolute discretion,\nduring the term of this Agreement and, subject to the provisions of the last\nparagraph of Section 2 hereof, for the two years immediately following the\nEmployment Term (including any extensions thereof, as provided herein),\nExecutive shall not either directly or indirectly, whether by establishing a\nnew business or by joining an existing one, and whether as a principal,\nemployee, stockholder, officer, director, agent, consultant or in any other\ncapacity, compete with the Company or become associated with a business\nenterprise which competes with any business operation of the Company, or any\nbusiness operation of the Company planned prior to Executive's termination of\nemployment, in the geographical areas in which the Company is then doing and\nplans to do business for the next succeeding twelve month period.\n\n         b. Executive and the Company intend that: (i) this covenant not to\ncompete shall be construed as a series of separate covenants, one for each\ncounty and each product line; (ii) if any portion of the restrictions set forth\nin this Section 9 should, for any reason whatsoever, be declared invalid by a\ncourt of competent jurisdiction, the validity or enforceability of the\nremainder of such restrictions shall not thereby be adversely affected; (iii)\nExecutive declares that the territorial and time limitations set forth in this\nSection 9 are reasonable and properly required for the adequate protection of\nthe business in the Company. In the event any such territorial or time\nlimitation is deemed to be unreasonable by a court of competent jurisdiction,\nExecutive agrees to the reduction of the territorial or time limitation to the\narea or\n\n                                      -11-\n\n\n\n\nperiod which such court shall have deemed reasonable; (iv) the existence of any\nclaim or cause of action by Executive against the Company shall not constitute\na defense to the enforcement by the Company of such restrictions, but such\nclaim or cause of action shall be litigated separately.\n\n         10. Successors; Binding Agreement. This Agreement and all rights of\nthe Executive hereunder shall inure to the benefit of, and shall be enforceable\nby, the Executive's personal or legal representatives, executors,\nadministrators, successors, heirs, distributees, devisees and legatees. If the\nExecutive should die while any amount would still be payable to him hereunder\nif he had continued to live, all such amounts, unless otherwise provided\nherein, shall be paid in accordance with the terms of this Agreement to the\nExecutive's devisee, legatee or other designee or, if there be no such\ndesignee, to the Executive's estate. This Agreement shall inure to the benefit\nof the successors and assigns of the Company.\n\n         11. Notice. For the purposes of this Agreement, notices, demands and\nall other communications provided for in the Agreement shall be in writing and\nshall be deemed to have been duly given when delivered against receipt therefor\nor three days after being mailed by United States certified mail, return\nreceipt requested, postage prepaid, addressed as follows:\n\n\n     If to the Executive:      Mr. Richard Falcone\n                               (at the address referenced on the first page of\n                               this Agreement)\n\n     If to the Company:        Net Grocer Inc.\n                               919 Third Avenue\n                               New York, New York 10022\n                               Attention:  President\n\n\n                                      -12-\n\n\n\n\nor to such other address as either party may have furnished to the other in\nwriting in accordance herewith, except that notice of change of address shall\nbe effective only upon receipt.\n\n         12. Miscellaneous. No provisions of this Agreement may be modified,\nwaived or discharged unless such waiver, modification or discharge is agreed to\nin writing and signed by the Executive and such officers of the Company as may\nbe specifically designated by its Board of Directors. No waiver by either party\nhereto at any time of any breach by the other party hereto of, or compliance\nwith, any condition or provision of this Agreement to be performed by such\nother party shall be deemed a waiver of similar or dissimilar provisions or\nconditions at the same or at any prior or subsequent time.\n\n         13. Validity. The invalidity or unenforceability of any provision or\nprovisions of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect.\n\n         14. Entire Agreement. This Agreement sets forth the entire agreement\nand understanding of the parties hereto in respect of the subject matter\ncontained herein, and supersedes all prior agreements, promises, covenants,\narrangements, communications, representations or warranties, whether oral or\nwritten, by any officer, employee or representative of any party hereto or any\npredecessor of any party hereto.\n\n         15. Non-Assignability. This Agreement is entered into in consideration\nof the personal qualities of the Executive and may not be, nor may any right or\ninterest hereunder be, assigned by him without the prior written consent of\nCompany.\n                                      -13-\n\n\n\n\n         16. Choice of Law. This Agreement is to be governed by and interpreted\nunder the laws of the State of New York without regard to its conflict of laws\nprinciples.\n\n         17. Counterparts. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which\ntogether shall constitute one and the same instrument. \n\n         18. Severability. The provisions of Sections 2, 8, 9, 15 (second\nparagraph) and 16 of this Agreement shall survive the termination of this\nAgreement.\n\n         IN WITNESS WHEREOF, the parties hereto have executed this Agreement on\nthe day and year first-above written.\n\n                                   NET GROCER INC.\n\n\n                                   By:\/s\/ Daniel Nissan\n                                      _________________________________\n                                      Daniel Nissan, President and\n                                      Chief Operating Officer\n\n\n                                   EXECUTIVE\n\n                                   \n                                   \/s\/ Richard D. Falcone\n                                   ------------------------------------\n                                   Richard Falcone\n\n\n                                      -14-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8326],"corporate_contracts_industries":[9499],"corporate_contracts_types":[9539,9544],"class_list":["post-39389","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netgrocer-inc","corporate_contracts_industries-retail__food","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39389","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39389"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39389"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39389"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39389"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}