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Exhibit 10.7
TERMINATION OF EMPLOYMENT AGREEMENT
TERMINATION, dated this 11th day of October, 2000, by and between Mega
Group, Inc., a New York corporation ("Mega"), and Xxxxxx X. Xxxxxxx, an
individual and resident of New York ("Employee").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. That certain employment agreement dated April 28, 1992 between
the parties (the "Employment Agreement"), a copy of which is attached hereto as
Exhibit A, is terminated, satisfied, and discharged herewith.
2. Neither party shall have any further liability to the other
thereunder.
3. Without limiting the generality of the foregoing, each party
waives as against the other any claim for compensation, performance, breach,
reimbursement, and the payment of fringe benefits thereunder, whether accrued or
unaccrued.
IN WITNESS WHEREOF, the parties have caused this Termination to be
executed the day and year first above written.
MEGA GROUP, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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EXHIBIT A
EMPLOYMENT AGREEMENT
Agreement made April 28, 1992, between MEGA GROUP, INC., a New York
Corporation with offices at 000 Xxxxx Xxxxxx, Xxxx, Xxx Xxxx 00000 (the
"Company"), and Xxxxxx Xxxxxxx, residing at 000 Xxxxx Xxxx, Xxxxxxx Xxxx, Xxx
Xxxx 00000 (the "Producer").
WHEREAS, Producer represents that he is duly licensed as an insurance
agent in the State of New York, authorized to sell property, casualty, health
and life insurance;
WHEREAS, the Producer represents that all insurance business submitted
to the Company as the basis for the payment of the commissions constituting
compensation hereunder will belong solely to the Producer;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations and warranties, contained herein, the parties agree
as follows:
1. Duties. The Producer is employed to sell and promote the sale of all
types of insurance which he is licensed to sell and for which the Company
maintains a market. Producer is permitted to engage in the sale of life,
accident and health insurance as part of his duties hereunder, and is permitted
to engage in his life, accident and health insurance business with Xxxx Xxxxxxx
or otherwise.
In consideration of the annual salary payable to Producer hereunder,
Producer will expend reasonable efforts in servicing the book of business
Company has purchased from Xxxxxxx Agency, Inc. under separate agreement.
2. Compensation. During the first one year term of this Agreement
beginning on the Commencement Date to be established as hereafter provided, the
Company shall pay the Producer at the annual rate of $120,000.00 per year
payable on the regular paydays of the Company. Such compensation shall be gross
and shall be subject to all withholding or other required deductions.
Thereafter, such compensation rate shall decline by $6,000.00 per year until it
shall reach the annual rate of $60,000.00 per year during the eleventh and
subsequent years of this Agreement.
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In addition to the salary payable pursuant to the preceding paragraph,
the Producer shall be entitled to the "Producer's Share" of first year and
renewal commissions generated through Producer's efforts during the entire term
of this Agreement. The "Producer's Share" shall equal 40% of the first year and
renewal regular commission received on the new property and casualty business
produced by the Producer. Profit sharing or contingency commissions belong
solely to the Company and do not enter into the computation of "Producer's
Share".
The "Producer's Share" of commissions shall be reduced by any returned
commissions, any loss due to bad debts or lack of collectability, or any other
cause the net result of which is to deprive the Company of the complete benefit
of the insurance commission otherwise used in computing the "Producer's Share".
Further, Producer shall be entitled to an override on the commission on
property and casualty insurance only produced by any other producer who Producer
introduces to the Company and the Company hires during the term of this
Agreement. Such override shall equal 10% of the new producer's share due such
new producer for the first year after such producer(s) commence work for the
Company. There shall be no override paid on any life, accident or health
insurance business placed with the Company.
In determining which business has been produced by the Producer, only
business produced solely through the Producer's efforts shall be counted.
Business produced through the efforts of the Company staff, Company's Customer
Service Representatives or "Walk-In" business or business generated through the
initiative of the insured rather than through the initiative of the Producer
shall not be counted in determining the Producer's new business production.
Producer has elected to have the Company maintain a yellow page telephone
advertisement in the name "Xxxxxxx Agency, Inc.". Insureds originating solely by
reason of such advertisement shall be included in Producer's new business
production. To the extent advertising costs for "Xxxxxxx Agency, Inc." or
Producer exceed the rate of $5,000.00 per year they shall be borne by Producer
and reduce Producer's salary.
The Producer shall have the right to 100% of the net commissions
received on life, accident or health insurance business.
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3. Term. The term of this Agreement shall commence on the Commencement
Date. The Commencement Date shall be determined by a written document signed by
an authorized representative of the Company and by the Producer. The
Commencement Date shall begin on the first day of the calendar month following
the completion of the merger of the Producer's insurance business presently
conducted under the name "Xxxxxxx Agency, Inc.".
The term of this Agreement shall be indefinite. The Agreement may be
terminated by the Producer by the giving of at least sixty (60) days prior
written notice to the Company. Termination shall be effective upon the
expiration of such period provided such period is at least sixty days. Until the
Producer shall reach 65 years of age, this Agreement may be terminated by the
Company only for cause. "Cause" shall include but not be limited to the
following:
(i) The Producer's loss of any license required to carry out each and
every duty of his position hereunder.
(ii) The conviction of the Producer of any crime which is punishable by
imprisonment or, if not punishable by imprisonment, would have in the opinion of
a reasonable person a material negative impact on the business of the Company.
(iii) The death of the Producer.
(iv) The permanent disability, incapacity or incompetence of the
Producer. For the purpose of this Agreement, the term "permanent disability"
shall mean the inability of the Producer to perform each and every duty of his
position for a continuous period in excess of six months in any twelve month
period.
(v) Any act or omission on the part of the Producer which would subject
the Company to censure by the Insurance Department of the State of New York or
any other governmental agency having jurisdiction over the Company or would
cause the Company to be in breach of any of it's agency agreements with any of
it's insurance carriers.
(vi) Such other cause as may be found to be such by any court of
competent jurisdiction.
(vii) Doing anything which would constitute a material breach of this
Employment Agreement.
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In the case of a termination for loss of a required license, such
termination shall apply only to Producer's status as a licensed insurance agent.
Producer's employment shall continue in the capacity of a customer service
representative, provided such position does not then require any license not
then held by Producer. Producer shall receive no commissions in such case but
shall be paid a salary equal to what the Company then pays experienced
commercial customer service representatives.
4. Right of Set off. In the event any of the representations and
warranties made by Xxxxxxx Agency, Inc. and/or the Producer pursuant to the
terms of this Agreement or to the terms of the Agreement providing for the sale
or transfer of the business of the Xxxxxxx Agency, Inc. insurance book of
business to the Company are violated, then the Company shall have the right to
set off any loss sustained by the Company as a result of the breach of such
representation and warranty from any funds due to the Producer under the terms
of this Agreement. Such right off set shall be limited to 50% of the total
compensation due Producer hereunder in any one year.
5. Restrictive Covenant. During the term of this Agreement the Producer
shall place all property and casualty insurance business with the Company. If
the Company shall be unwilling or unable to place any such insurance business,
then the Company may consent to the brokering of such business elsewhere on such
terms and conditions as the Company may then reasonably impose. The Producer
shall engage in no business which is competitive with that of the Company as it
exists today or as it may exist in the future.
Upon the termination of this Agreement, the Producer shall neither
solicit nor accept any insurance business from any of the insureds who are
included within the insurance book of business purchased by the Company from the
Xxxxxxx Agency, Inc. or from the Producer. If the Company shall purchase the new
business of the Producer created during the term of this Agreement as provided
for in the next paragraph, then such new business shall also be the sole
property of the Company. The Producer shall neither solicit nor accept any
insurance business from any insured included within such new book of business
purchased from the Producer. If the Producer shall breach this paragraph, the
parties agree that exact damage to the Company would be difficult or impossible
to determine. Accordingly, they agree that liquidated damages equal to 80% of
the commission, including contingent commission or profit sharing, shall be
payable to the Company to compensate it for it's loss due to Producer's breach.
Such payments shall continue for so long as Producer receives any direct or
indirect benefit from the breach.
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6. Option to Purchase. Upon the termination of this Agreement by either
the Company or the Producer, and whether for cause or not, the Company shall
have the option to purchase the new book of business created by the Producer
during the term of this Agreement. The option of the Company to purchase such
new book of business shall be for a price equal to two times the annual
commissions received on such new book of business payable over ten years. Such
payment shall equal 20% of the commissions received on such new book of business
for each of the ten years following the closing on the purchase. Such purchase
shall be based on a retained basis with a 20% per year payment equal to 20% of
the commissions received on such new book of business during the year. The risk
of increase or decrease shall be borne by the Producer. As an example, if the
commissions received by the Company on such new book of business during the year
following the exercise of the option to purchase shall equal $100,000.00, then
the Producer shall receive $20,000.00. If such commissions remained stable for
the remaining nine years, then the Producer would receive $20,000.00 per year
over a total of ten years, or $200,000.00.
The Company shall have thirty (30) days following termination to decide
if it shall exercise its option. If it does not, then such new book of business
shall belong to Producer.
7. Employee Expenses. The Company shall reimburse reasonable and
necessary expenses incurred by the Producer in the course of his employment
hereunder but such reimbursement shall only relate to expenses incurred in
generating or maintaining property and casualty insurance. No expenses related
to life accident or health insurance shall be reimbursable. Producer shall
maintain adequate and accurate records for all such reimbursable expenses and
shall submit same prior to reimbursement. The Company's reimbursement policy may
change from time to time but any such changes which shall affect the employee
shall be generally applicable to all of the Company's employees similarly
situated to the Producer.
8. Fringe Benefits. The Producer shall be afforded access to all of the
Company's fringe benefit packages which are provided to other officers of the
Company. The Company reserves the right to change any and all of it's fringe
benefit packages as it shall deem fit in the exercise of it's business judgment.
The Company shall bonus $1,000.00 per year to the Producer to be used
solely for the purchase of life insurance on Producer's life.
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9. Credit Risk. The Producer shall be responsible for the collection of
all premiums due on any business produced by the Producer. In the event of any
bad debt, returned commission or similar reduction in commission, the Company
shall have the right to charge back such amount against the Producer. If such
right of charge back shall be insufficient to make the Company whole, the
Producer shall, nevertheless, remain liable to the Company for any such excess
loss.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MEGA GROUP, INC.
By: /s/ XXXXXX X. XXXXXXX, XX.
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XXXXXX X. XXXXXXX, XX.
Chief Executive Officer
/s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX
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STATE OF NEW YORK:
ss.:
COUNTY OF ALBANY :
On this 28th day of April, 1992, before me personally came Xxxxxx X.
Xxxxxxx, Xx. to me personally known, who being by me duly sworn, did depose and
say that he resides in the County of Albany, State of New York, that he is the
President of Mega Group, Inc., the Corporation described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said Instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation; and that he executed the
same by like order.
/s/ XXXXXXXX X. XXXXX, XX.
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Notary Public
XXXXXXXX X. XXXXX, XX.
NOTARY PUBLIC, STATE OF NEW YORK
QUALIFIED IN COLUMBIA COUNTY
#5098825
COMMISSION EXPIRES AUGUST 31, 0000
XXXXX XX XXX XXXX:
ss.:
COUNTY OF ALBANY::
On this 28th day of April, 1992 before me the subscriber
personally appeared Xxxxxx Xxxxxxx, to me personally known and known to me to be
the same person described in and who executed the within instrument, and he duly
acknowledged to me that he executed the same.
/s/ XXXXXXXX X. XXXXX, XX.
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Notary Public
XXXXXXXX X. XXXXX, XX.
NOTARY PUBLIC, STATE OF NEW YORK
QUALIFIED IN COLUMBIA COUNTY
#5098825
COMMISSION EXPIRES AUGUST 31, 1992
