Exhibit 10.46
EMPLOYMENT AGREEMENT
OF
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EMPLOYMENT AGREEMENT made as of the lst day of July, 1994
(hereinafter referred to as the "Effective Date"), by ARISTA INSURANCE COMPANY,
a New York corporation (hereinafter referred to as "Corporation") and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (hereinafter referred to as "Employee").
WHEREAS, the Employee desires to be employed by the Corporation as
Vice President upon the terms and conditions hereinafter set forth and the
Corporation desires that the Employee be so employed.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties intending to be
legally bound, agree as follows:
1. Term of Employment. The Corporation hereby agrees to employ the
Employee as Vice President, and the Employee hereby agrees to serve the
Corporation in such capacity for the period commencing as of the Effective Date
and ending on the fifth (5th) anniversary of such date (hereinafter referred to
as the "Employment Period"), unless sooner terminated as hereinafter provided.
2. Scope of Duties. The Employee shall serve as Vice President of
the Corporation and shall assist, to the best of his ability, in the operation
of the Corporation, which shall include, but shall not be limited to, the sale,
promotion and development of the products and business of the Corporation. The
Employee shall have the powers and duties commonly ascribed to an executive
officer of a corporation. The Employee shall report to and shall be responsible
to the President of the Corporation.
3. Time To Be Devoted to Employment. The Employee, except during
vacation periods or absences due to temporary illness, shall devote
substantially all of his business time, attention and energies to his duties and
responsibilities hereunder and, except for business trips which shall be
necessary or desirable in connection with the Corporation's business, shall
render such services at the principal office of the Corporation. Nothing herein
contained shall prevent or be construed as preventing the Employee from holding
or purchasing up to five (5%) percent of any class of stock or securities of any
corporation which is listed on a national securities exchange or is regularly
traded in the over-the-counter market, or from holding or making other
investments in or from participating in any other business venture, so long as
no such investment or participation in such business venture shall involve any
requirement that the Employee devote substantial time during normal business
hours thereto and, so long as such investment or the Employee's participation in
such business venture does not involve any conflict with his duties or
obligations to the Corporation as provided in this Employment Agreement.
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4. Direct Compensation.
(a) In consideration for services to be rendered by the
Employee hereunder during the Employment Period:
(i) The Employee shall receive a salary at the rate of
One Hundred and Twenty-Five Thousand ($125,000) Dollars per
annum for the entire Employment Period, which salary shall be
subject to all applicable federal, state and other tax
withholdings. Such salary shall be paid to the Employee in
twenty-six (26) equal bi-weekly installments, payable in
arrears or on such other basis as other employees of the
Corporation generally are paid; and
(ii) With respect to each fiscal year of the Corporation
ending during the Employment Period, and during which the
Employee is an employee of the Corporation at the end of any
such fiscal year, the Corpora tion may, but shall not be
obligated to, pay to the Employee as additional compensation
such bonus as may be determined by the Board of Directors of
the Corporation.
(b) In the event this Agreement shall terminate in the manner
contemplated in subparagraph 10(b)(iv), the Corporation shall have the option,
exercisable on sixty (60) days prior written notice, to advise the Employee that
the Corporation has elected to cause the Employee not to engage in any activity
described in sub-paragraph 10(a)(i) and 10(a)(ii) for a period of one year
following the date of such termination in consideration of the payment by the
Corporation of the sum of $75,000 to the Employee, which payment shall be paid
to the Employee in twelve (12) equal monthly installments, payable on the first
day of the month, commencing in the month subsequent to the month in which the
Employment Period terminates. In the event the Corporation fails to send to the
Employee such written notice, such failure shall be deemed to be an election by
the Corporation not to require the Employee to forebear from engaging in any of
the activities described in subparagraph 10(a)(i) and 10(a)(ii) from and after
the date of such termination.
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5. Fringe Benefits. The Employee shall be entitled to participate in
any and all fringe benefits and/or plans generally afforded to the other
executives of the Corporation (to the extent the Employee otherwise qualifies
therefor under the specific terms and conditions of each such benefit or plan)
including, without limitation, group disability insurance, life insurance,
medical insurance and pension plans which are, or which may become available
generally to executive officers of the Corporation. The Employee shall be
entitled to three (3) weeks vacation during each of the first and second 12
month periods and to four weeks (4) vacation during each of the third, fourth
and fifth 12 month periods falling within the Employment Period, to be taken at
such time or times as the reasonable needs of the Corporation's business shall
allow.
6. Reimbursement of Expenses.
(a) The Corporation shall reimburse the Employee for all
reasonable expenses incurred in connection with the promotion of the business of
the Corporation, including expenses for travel, entertainment and similar
expenses incurred by the Employee on the Corporation's behalf. No such
reimbursement shall be made except upon the presentation by the Employee of an
itemized account of those of such expenses or other evidence thereof for which
reimbursement then is being sought, all in form reasonably satisfactory to the
Corporation.
(b) The Corporation also shall reimburse the Employee in the
sum of Six Thousand ($6,000) Dollars per annum for automobile expenses incurred
by the Employee in
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connection with the business of the Corporation, payable in twelve (12) equal
monthly installments payable on the first (1st) day of each month falling within
the Employment Period.
(c) The Corporation shall provide a Three Thousand Six Hundred
($3,600) Dollar nonallocated expense allowance for expenses incurred by the
Employee in carrying on the business of the Corporation for each twelve month
period falling within the Employment Period, payable in twelve (12) equal
monthly installments on the first (1st) day of each month falling within the
Employment Period.
7. Termination of Employment.
During the Employment Period, the Employee's employment may be
terminated by the Board of Directors of the Corporation on the occurrence of any
one or more of the following events:
(a) the death of the Employee; or
(b) the failure by the Employee substantially to perform his
duties and responsibilities hereunder owing to physical or mental incapacity
(hereinafter referred to as a "disability"), which disability shall continue for
more than twelve (12) consecutive months; or
(c) for "Cause", which shall mean (i) the willful failure by
the Employee substantially to perform his duties hereunder, for reasons other
than death or disability; (ii) the willful engaging by the Employee in
misconduct materially injurious to the Corporation; or (iii) the commission by
the Employee of an act constituting common law fraud or a felony against the
Corporation; or
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(d) upon sixty (60) days prior written notice provided that
such notice shall be accompanied by a certified or cashier's check in an amount
calculated as follows:
(i) if such notice is sent at any time prior to the end
of the first year of the Employment Term, such check shall be
in the amount of $125,000;
(ii) if such notice is sent at any time after the end of
the first year of the Employment Term, but prior to the end of
the third year thereof, such check shall be in the amount of
$100,000; or
(iii) if such notice is sent at any time after the end
of the third year of the Employment Term but prior to the end
of the fifth year thereof, such check shall be in the amount
of $75,000.
8. Indemnity. The Corporation, to the extent it may provide
indemnification to an officer under applicable law, shall indemnify the Employee
and hold him harmless from any and all liability arising out of any act or
failure to act undertaken by him in good faith while performing services for the
Corporation, and may obtain coverage for him under any insurance policy now in
force or hereafter obtained during the Employment Period covering officers and
directors of the Corporation against claims made against them or any of them for
any act or failure to act in such capacities. The Corporation, to the extent
permitted under applicable law, shall pay all expenses as incurred, including
reasonable attorneys' fees actually or necessarily incurred by the Employee in
connection with the defense of any action, suit or proceeding arising out of any
such claim and in connection with any appeal arising therefrom.
9. Disclosure of Information. All memoranda, notes, records or other
documents made or compiled by the Employee or made available to him during the
term of this
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employment concerning the business of the Corporation shall be the Corporation's
property and shall be delivered to the Corporation by the Employee on the
termination of his employment. The Employee shall not use for himself or others
or divulge to others, any proprietary or confidential information of the
Corporation obtained by him as a result of his employment unless authorized by
the Corporation. For purposes of this Section 9, the term "proprietary or
confidential information" shall mean all information which is known only to the
Employee or to the Employee and employees, former employees, consultants or
others in a confidential relationship with the Corporation which relates to
specific matters such as trade secrets, customers, potential customers, vendor
lists, pricing and credit techniques, research and development activities, books
and records and commission schedules, as they may exist from time to time, which
the Employee may have acquired or obtained by virtue of work heretofore or
hereafter performed for or on behalf of the Corporation or which he may acquire
or may have acquired knowledge of during the performance of such work, and which
is not known to others, or is not readily available to others from sources other
than the Employee, or is not in the public domain. In the event of a breach or a
threatened breach by the employee of the provisions of this Section 9, the
Corporation shall be entitled to an injunction restraining the Employee from
disclosing, in whole or in part, the aforementioned proprietary or confidential
information of the Corporation, or from rendering any services to any person,
firm, corporation, association or other entity to whom or to which such
proprietary or confidential information, in whole or in part, has been disclosed
or is threatened to be disclosed. Nothing herein contained shall be construed as
prohibiting the Corporation from pursuing any other remedies available to the
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Corporation for such breach or threatened breach, including the recovery of
damages from the Employee.
10. Restrictive Covenants.
(a) The Employee hereby acknowledges and recognizes the highly
competitive nature of the Corporation's business and, accordingly, agrees that,
in consideration of the premises contained herein, he will not during the
Employment Period and thereafter until the Designated Date (as hereinafter
defined): (i) directly or indirectly engage in any Competitive Activity (as
hereinafter defined), whether such engagement shall be as an officer, director,
employee, consultant, agent, lender, stockholder, or other participant; or (ii)
assist others in engaging in Competitive Activity. As used herein, the term
"Competitive Activity" shall mean and include the development and marketing of
and all activity involving the sale of statutory disability benefits insurance
or any other insurance product then offered and written by the Corporation or by
any other subsidiary of Arista Investors Corp. which is licensed to sell
insurance in the State of New York during the calendar year immediately
preceding the termination of Employee's employment hereunder.
(b) As used in this Section 10, the "Designated Date" shall
mean any of the following dates:
(i) in the event the Employee willfully terminates his
employment with the Corporation in violation of this Employment
Agreement prior to the expiration of the Employment Period, the term
"Designated Date" shall mean the first anniversary of the date of
such termination;
(ii) in the event the Corporation terminates the
employment of the Employee under this Employment Agreement for
Cause, the term "Designated Date" shall mean the first anniversary
of the date of such termination; or
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(iii) subject to the provisions of subparagraph 7(d)
hereof, in the event the Corporation terminates the employment of
the Employee without cause, the term "Designated Date" shall mean
the first anniversary of the date of such termination; or
(iv) subject to the provisions of subparagraph 4(b)
hereof, in the event this Agreement terminates at the end of the
full term of the Employment Period, the term "Designated Date" shall
mean the date of such termination or the first anniversary of the
date of such termination, as the case may be.
It is the desire and intent of the parties that the provisions of
this Section 10 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, if any provision of this Section 10 shall be adjudicated to
be invalid or unenforceable in any such jurisdiction, such provision of this
Section 10 shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision of this Section 10 in the particular
jurisdiction in which such adjudication is made. In addition, if the scope of
any restriction contained in this Section 10 is adjudicated to be too broad to
permit enforcement thereof to its fullest extent, then such restriction shall be
enforced to the maximum extent permitted by law and the Employee hereby consents
and agrees that such scope may be judicially modified accordingly in any
proceeding brought to enforce such restriction.
(c) In the event of a breach or threatened breach by the Employee of
the provisions of this Section 10, the Corporation shall be entitled to an
injunction restraining him from such breach. Nothing herein contained shall be
construed as prohibiting the Corporation from pursuing any other remedies
available for such breach or threatened breach or any other breach of this
Employment Agreement.
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11. Key-Man Insurance. The Employee shall cooperate with the
Corporation by completing all necessary applications and take all required
physical examinations to enable the Corporation to obtain and maintain key-man
life insurance on the life of the Employee in whatever amount the Corporation
determines.
12. Other Agreements. The Employee hereby warrants and represents
that the Employee hereby warrants and represents that he has the right and the
authority to enter into this Agreement and that he is not subject to any
agreement which would violate, or be violated by, this Agreement. The Employee
further warrants and represents that he is not a party to any other written
agreement of employment.
13. Notices. Any notices required or permitted to be given under the
provisions of this Employment Agreement shall be in writing and delivered
personally or by certified or registered mail, return receipt requested, postage
prepaid to the following persons at the following addresses, or to such other
person at such other address as any party may request by notice in writing to
the other party to this Agreement:
To Employee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Corporation: Arista Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
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Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
14. Construction. This Employment Agreement shall be construed in
accordance with, and be governed by, the laws of the State of New York for
contracts entered into and to be performed in New York.
15. Successors and Assigns. This Employment Agreement shall be
binding on the successors and assigns of the Corporation and shall inure to the
benefit and be enforceable by and against its successors and assigns. This
Employment Agreement is personal in nature and may not be assigned or
transferred by the Employee without the prior written consent of the
Corporation.
16. Entire Agreement. This instrument contains the entire
understanding and agreement between the parties relating to the subject matter
hereof, and neither this Employment Agreement nor any provision hereof may be
waived, modified, amended, changed, discharged or terminated, except by an
agreement in writing signed by the party against whom enforcement of any waiver,
modification, change, amendment, discharge or termination is sought.
17. Counterparts. This Employment Agreement may be executed simulta
neously in counterparts, each of which shall be deemed an original, and all of
which counterparts shall together constitute a single agreement.
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18. Illegality. In case any one or more of the provisions of this
Employment Agreement shall be invalid, illegal or unenforceable in any respect,
the validity, the legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
19. Captions. The captions of the sections hereof are for
convenience only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Employment Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and
executed this Agreement the day and year first above written.
ATTEST: ARISTA INSURANCE COMPANY
▇▇▇▇▇ ▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Assistant) Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
[CORPORATE SEAL]
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------- --------------------------------
Witness ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EMPLOYMENT AGREEMENT ASSIGNMENT
EMPLOYMENT AGREEMENT ASSIGNMENT, dated as of February 1, 1999 by
ARISTA INSURANCE COMPANY, a New York corporation (the "Assignor"), in favor of
ARISTA INVESTORS CORP., a Delaware corporation (the "Assignee").
WHEREBY, Assignor is a wholly-owned subsidiary of Assignee.
WHEREBY, Assignor and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ are parties to that
certain Employment Agreement, dated as of July 1, 1994 (the "Employment
Contract"), whereby ▇▇. ▇▇▇▇▇▇ is employed by Assignor as Vice President (the
"Employee").
WHEREBY, Assignee intends to sell substantially all of its assets to
The Guardian Life Insurance Company of America ("The Guardian") pursuant to a
Assumption Reinsurance Agreement (the "Assumption Reinsurance Agreement") by and
among Assignee, Assignor and The Guardian (the "Transaction").
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements set forth in the Assumption Reinsurance Agreement, the
undersigned hereby agree as follows:
1. Assignor and Employee hereby transfer, convey, assign, release,
set over and deliver to Assignee, to and for the benefit of Assignee and its
successors and assigns, effective as of the date of this Assignment, all of
Assignor's and Employee's respective rights and interest in and to the
Employment Contract, a copy of which is attached hereto as Exhibit A, and all
rights attendant thereto (the "Assignment").
2. The Assignment shall be effective on the closing date of the
Transaction.
3. At the further request of Assignee, Assignor and Employee shall
cooperate with and execute all further documentation prepared by Assignee to
evidence the Assignment.
4. This Assignment shall be governed in all respects, including
validity, interpretations and effect, by the laws of the State of New York.
5. This Assignment may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have each caused this Assignment to be
executed by its duly authorized representative, effective as of the date first
written above.
ARISTA INSURANCE COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Accepted and Agreed to:
ARISTA INVESTORS CORP.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chairman of Board
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