{"id":39397,"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-netgrocer-inc-and-jeffrey-steinberg.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-netgrocer-inc-and-jeffrey-steinberg","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-netgrocer-inc-and-jeffrey-steinberg.html","title":{"rendered":"Employment Agreement &#8211; NetGrocer Inc. and Jeffrey Steinberg"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n         AGREEMENT made as of February 1, 1997, between Net Grocer Inc., a\ncorporation with its principal office at 919 Third Avenue, New York, New York\n10022 (the \"Company\"), and Jeffrey Steinberg, 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 Vice President of Marketing and Customer Management of the\nCompany during the Employment Term (as hereinafter defined). During the\nEmployment Term, Executive shall perform such duties and functions which are\nconsistent with Executive's title as the Company's Board of Directors or Chief\nExecutive Officer shall from time to time determine and Executive shall comply\nin the performance of his duties with the policies of, and be subject to, the\ndirection of the Board of Directors and the Chief Executive Officer of the\nCompany.\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, partner, joint venturer, stockholder,\nemployee, corporate officer or director, engage or become financially interested\nin, or be concerned with any other duties or pursuits which interfere with the \nperformance of his duties hereunder, or which even if non- interfering, may be\ninimical or contrary to the 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 February\n14, 1997 (the \"Termination Date\") unless sooner terminated in accordance with\nthe terms 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         In the event the Company terminates this Agreement without cause (as\ndefined in Section 5 hereof), the parties hereto agree that damages to the\nExecutive shall be difficult to ascertain in any such event, but in order to\nlimit the liability of the Company in any such event, the Executive shall be\nentitled to receive as liquidated damages and not as a penalty the lesser of\n(i) the base salary of the Executive for a period of three months from any such\ndate of termination or (ii) the entire amount of the base salary remaining due\nand payable from any such date of termination to the expiration of this\nAgreement, to be paid ratably over the remaining term of the Agreement;\nprovided however, that in the event Executive is terminated without cause (as\ndefined in Section 5 hereof) during the first twelve months of the Employment\n\n                                      -2-\n\n\n\n\n\nTerm, Executive shall be entitled to receive as liquidated damages and not as a\npenalty the base salary of Executive for a period of twelve months from any\nsuch 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 7 or 8 of this Agreement after such termination). In the event the\nExecutive so terminates this Agreement, the covenant not to compete provided\nfor in Section 8(a) hereof shall be extended for an additional six months (two\nyears and six months in total from such termination).\n\n         3. Compensation, etc.\n            a. Salary. In each of the three years of the Employment Term, the \nExecutive shall receive a base salary at the rate of $125,000 per annum as well\nas such bonuses as may be authorized from time to time by the Board of\nDirectors as provided in Section 3(b) hereof. The Executive's compensation\nshall be payable in installments in accordance with the Company's normal salary\npayment policies, and shall be subject to such payroll deductions as are\nrequired 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\nto participate in the Company's 1996 Stock Option Plan (the \"Plan\").  Under\n\n                                      -3-\n\n\n\n\n\nthe Plan and contemporaneously with the commencement of the Employment Term,\nthe Executive shall receive an option (the \"Option\") to purchase 200 shares of\nCompany stock available for issuance under the Plan at an exercise price of two\nhundred dollars ($200) per share (the \"Exercise Price\"). Except as specifically\nprovided otherwise herein, the Option will become exercisable in accordance\nwith the following schedule based upon the period of the Executive's continuous\nemployment or service with the Company following the date hereof:\n\nPeriod                                Incremental                 Cumulative\nof Continuous                         Percentage of               Percentage of\nEmployment\/                           Option                      Option\nService                               Exercisable                 Exercisable\n\nLess than 1 year                         0%                          0%\n\n1 year                                  25%                         25%\n\n2 years                                 25%                         50%\n\n3 years                                 25%                         75%\n\n4 or more years                         25%                        100%\n\n\n                  The Company hereby represents that the Exercise Price was\ndetermined by dividing the contributions of capital to the Company by the\nCompany's current stockholders by the number of shares deemed issued and\noutstanding on the date hereof. Any agreement entered into between the Company\nand Executive pursuant to the Plan relating to the Option shall provide that:\n\n                  (1) in the event (i) the Company terminates this Agreement\n         for any reason other than cause (as defined in Section 5 hereof) or\n         (ii) Executive terminates this Agreement and\/or his employment with\n         the Company any time on or after the first anniversary of the date\n         hereof, Executive shall be entitled to retain the vested portion of\n         the Option calculated in accordance with the\n\n                                      -4-\n\n\n\n         schedule above for a period of three months by which time Executive\n         must have exercised the Option or the Option shall terminate;\n\n                  (2) in the event the Company terminates Executive's\n         employment with the Company without cause, Executive will be credited\n         with one additional year of continuous employment for purposes of\n         determining the Cumulative Percentage of Option Exercisable in the\n         above schedule; provided that Executive shall be credited with a\n         second year of continuous employment if such event occurs during the\n         first twelve months of the Employment Term.\n\n                  (3) in the event Executive (i) is terminated for cause or (ii)\n         terminates this Agreement and\/or his employment with the Company at any\n         time prior to the first anniversary of the date hereof, the unexercised\n         portion of the Option shall terminate immediately and Executive shall\n         not be entitled to exercise any portion of the Option so terminated;\n         and\n\n                  (4) 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                                      -5-\n\n\n\n\n                           d. Expenses.  The Company acknowledges and  agrees \nthat the Executive, in rendering the services hereunder, will be required to\nspend sums of money for travel to various locations and for the entertainment\nof various persons and representatives of companies and organizations with whom\nthe Company is having, or would like to have, business relationships. In\naddition to 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 reimbursement\npolicies; provided however, that Executive shall be entitled to an advance from\nthe Company for any single expense item greater than $500 in amount but in no\nevent will Executive be relieved of his obligation to properly document all\nexpenses. In addition to the foregoing, Executive shall be entitled to\nreimbursements for reasonable expenses, including temporary housing and travel\nto the Boston area, incurred by Executive in relocating to the New York area as\nrequired pursuant to Section 4 hereof, but in no event in an amount in excess\nof $25,000; and provided that all such relocation expenses shall be documented\nas set forth above.\n\n                           e. Vacations. The Executive shall be entitled to 15 \nbusiness days of vacation under guidelines established by the Company from time \nto time. Vacation time shall not cumulate from year to year.\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                                      -6-\n\n\n\n\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 obligations hereunder (other than breaches of the\ncovenants set forth in Sections 1, 7 and 8 hereof which events are governed by\nclauses (vi) and (vii) below); (ii) Executive's conviction (which, through\nlapse of time or otherwise, is not subject to appeal) of any crime or offense\ninvolving money or other property of the Company or any of its subsidiaries,\n(iii) Executive's performance of any act or his failure to act, for which if\nExecutive were prosecuted and convicted, a crime or offense involving money or\nproperty of the Company or any of its subsidiaries, or which would constitute a\nfelony in the jurisdiction involved, would have occurred, (iv) any attempt by\nExecutive to improperly secure any personal profit in connection with the\nbusiness of the Company or any of its subsidiaries, (v) chronic alcoholism or\ndrug addiction, (vi) any breach by Executive of the terms of Section 7 or 8 of\nthis Agreement or (vii) any breach by Executive of the terms of Section 1 of\nthis Agreement.\n\n         6. Death; Disability. Except as provided herein, or in the Plan or any\nagreement made pursuant thereto, 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\n\n                                      -7-\n\n\n\n\n\nAgreement, Executive shall be deemed to be \"permanently disabled\" if, during\nthe term hereof, because of ill health, physical or mental disability, or for\nother causes beyond Executive's control, Executive shall have been unable or\nunwilling, or shall have failed to perform his duties hereunder for ninety (90)\nconsecutive days or for a total period of one hundred twenty (120) days,\nwhether consecutive or not.\n\n         7. 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         8. Covenant Not To Compete.\n            a. The Executive agrees that during the term of this Agreement and,\nsubject to the provisions of the last paragraph of Section 2 hereof, for the\ntwo years immediately following the Employment Term (including any extensions\nthereof, as provided herein) (the \"Covenant Period\"), Executive shall not\neither directly or indirectly, whether by establishing a new business or by\njoining an existing one, and whether as a principal, employee, stockholder,\nofficer, director, agent, consultant or in any other capacity, compete with the\nCompany or become associated with a business\n\n                                      -8-\n\n\n\n\n\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; provided\nhowever, that in the event the Company terminates Executive's employment with\nthe Company without cause, the Covenant Period shall be six months unless such\ntermination occurs during the first twelve months of the Employment Term, in\nwhich case the Covenant Period shall be twelve months.\n\n                           b.       Executive and the Company intend that: (i)\nthis covenant not to compete shall be construed as a series of separate\ncovenants, one for each county and each product line; (ii) if any portion of\nthe restrictions set forth in this Section 8 should, for any reason whatsoever,\nbe declared invalid by a court of competent jurisdiction, the validity or\nenforceability of the remainder of such restrictions shall not thereby be\nadversely affected; (iii) Executive declares that the territorial and time\nlimitations set forth in this Section 8 are reasonable and properly required\nfor the adequate protection of the business in the Company. In the event any\nsuch territorial or time limitation is deemed to be unreasonable by a court of\ncompetent jurisdiction, Executive agrees to the reduction of the territorial or\ntime limitation to the area or period which such court shall have deemed\nreasonable; (iv) the existence of any claim or cause of action by Executive\nagainst the Company shall not constitute a defense to the enforcement by the\nCompany of such restrictions, but such claim or cause of action shall be\nlitigated separately.\n                                      -9-\n\n\n\n\n         9. Successors; Binding Agreement. This Agreement and all rights of the\nExecutive hereunder shall inure to the benefit of, and shall be enforceable by,\nthe Executive's personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees. If the Executive should\ndie while any amount would still be payable to him hereunder if he had\ncontinued to live, all such amounts, unless otherwise provided herein, shall be\npaid in accordance with the terms of this Agreement to the Executive's devisee,\nlegatee or other designee or, if there be no such designee, to the Executive's\nestate. This Agreement shall inure to the benefit of the successors and assigns\nof the Company.\n\n         10. 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     If to the Executive:      Mr. Jeffrey Steinberg\n                               (at the address referenced on the first page of\n                               this Agreement)\n\n     with a copy to:           Walter Wekstein, Esq.\n                               Gadsby &amp; Hannah LLP\n                               225 Franklin Street\n                               Boston, MA  02110\n\n     If to the Company:        Net Grocer Inc.\n                               919 Third Avenue\n                               New York, New York 10022\n                               Attention:  President\n\n     with a copy to:           Sheldon G. Nussbaum, Esq.\n                               Fulbright &amp; Jaworski L.L.P.\n                               666 Fifth Avenue\n                               New York, NY  10103\n\n                                      -10-\n\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         11. 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         12. 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         13. 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         14. 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\n                                      -11-\n\n\n\n\n\n         15. 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         16. 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         17. Severability. The provisions of Sections 2, 7, 8, 14 (second\nparagraph) and 15 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                                        By:\/s\/ Daniel Nissan\n                                           _________________________________\n                                           Daniel Nissan, President and\n                                           Chief Operating Officer\n\n          \n                                        EXECUTIVE\n\n                                        \/s\/ Jeffrey Steinberg\n                                        ____________________________________ \n                                        Jeffrey Steinberg\n\n\n                                      -12-\n\n\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-39397","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\/39397","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=39397"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39397"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39397"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39397"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}