EMPLOYMENT AGREEMENT, dated as of March 28, 2001 by and between DCAP
MANAGEMENT, INC. , a New York corporation (the "Company"), and XXXXX XXXX (the
"Employee").
RECITALS
WHEREAS, DCAP Group, Inc., the sole shareholder of the Company ("Group"),
and the Employee are parties to an Employment Agreement dated as of February 25,
1999 (the "Earlier Agreement").
WHEREAS, Group and the Employee desire to terminate the Earlier Agreement.
WHEREAS, the Company and the Employee desire to enter into an employment
agreement which will set forth the terms and conditions upon which the Employee
shall be employed by the Company and upon which the Company shall compensate the
Employee.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter set forth, the parties hereto have agreed, and do hereby agree, as
follows:
1. EARLIER AGREEMENT; EMPLOYMENT; TERM
1.1 The Earlier Agreement is hereby terminated and the parties thereto
shall have no further rights or obligations thereunder; provided, however, that
the foregoing shall not be deemed a waiver of any rights of the parties
thereunder in connection with the breach of any representation or covenant that
occurred prior to the date hereof. Simultaneously herewith, the Employee is
resigning as an officer of Group and each of the wholly and partially-owned
subsidiaries of Group (other than the Company) and as a director of the Company
and each of the wholly and partially-owned subsidiaries of Group (collectively,
the "DCAP Companies").
1.2 The Company will employ the Employee in its business, and the Employee
will work for the Company therein, as its President for a term commencing as of
the date hereof and terminating on the six (6) month anniversary of the date
hereof (the "Expiration Date"), subject to earlier termination for "cause" as
hereinafter provided (the employment period, as earlier terminated, being
referred to as the "Term").
1.3 Upon the expiration of the Term or the termination of the Employee's
employment with the Company for any reason whatsoever, he shall be deemed to
have resigned all of his positions as an employee and officer of the Company.
2. DUTIES
2.1 During the Term, the Employee shall serve as the Company's President
and shall perform duties of an executive character consisting of administrative
and managerial responsibilities on behalf of the Company of the type and nature
heretofore assigned to the Employee and such further duties of an executive
character as shall, from time to time, be delegated or assigned to him by the
Board of Directors of the Company consistent with the Employee's position.
Notwithstanding the foregoing, without the prior written consent of the Chief
Executive Officer of Group (the "CEO"), the Employee shall not (i) enter into
any start-up or conversion franchise
agreement that contains any provisions (whether by attachment of an addendum or
otherwise) other than those set forth in the standard start-up and conversion
franchise agreements used by the Company or make or give any verbal promises or
assurances to such effect; (ii) modify, whether in writing or otherwise, any
existing agreement with a franchisee; (iii) enter into any agreement,
understanding or arrangement with, or otherwise take any action concerning, any
Employee Store (as hereinafter defined) or any other entity in which the
Employee has an interest and with which the Company may have a business
relationship; or (iv) take any other action outside the normal course of
business. During the Term, the Employee shall present to the Company (or another
subsidiary of Group, if applicable) any and all business opportunities presented
to him that relate to, directly or indirectly, the business of the Company or
such other subsidiary.
3. DEVOTION OF TIME
3.1 During the Term, the Employee shall expend all of his working time for
the Company; shall devote his best efforts, energy and skill to the services of
the Company and the promotion of its interests; and shall not take part in
activities detrimental to the best interests of the Company; provided, however,
that, notwithstanding the foregoing, the Employee shall be permitted to devote
up to eight (8) hours per week in connection with the operation of the DCAP
franchisees wholly-owned by him and identified on Schedule 3.1 attached hereto
(the "Employee Stores").
4. COMPENSATION
4.1 For all services to be rendered by the Employee during the Term, and in
consideration of the Employee's representations and covenants set forth in this
Agreement, the Employee shall be entitled to receive from the Company
compensation as set forth in Paragraphs 4.2 and 4.3.
4.2 During the Term, the Employee shall be entitled to receive a salary at
the rate of one hundred seventeen thousand two hundred dollars ($117,200) per
annum. All amounts due hereunder shall be payable in arrears in installments
every two weeks.
4.3 During the Term, in connection with each franchise agreement approved
by the Board of Directors of the Company and entered into between the Company
and a franchisee solely as a result of the Employee's efforts, the Employee
shall be entitled to receive the fixed sum of two thousand dollars ($2,000).
Such sum shall be payable concurrently with the payment to the Company of the
initial franchise fee in full.
4.4 The Employee acknowledges and agrees that, in the event he has been, or
hereafter is, listed individually as the agent, broker of record or producer (or
similar term) (collectively, "Producer") in connection with any insurance policy
or contract (collectively, "Policies"), all commissions, fees and other amounts
payable in connection therewith are the exclusive property of DCAP Insurance
Agencies, Inc. ("DCAP Insurance"). The Employee hereby represents that set forth
on Schedule 4.4 attached hereto is a complete list of all Policies with respect
to which he is listed individually as the Producer. The Employee hereby
represents further that all monies received by him as a Producer have been
transferred to DCAP Insurance and agrees that, in the event he shall hereafter
receive any such monies as a Producer, he shall promptly turn them over to DCAP
Insurance and, until turned over, shall hold them in trust therefor. The
Employee
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acknowledges and agrees that DCAP Insurance may substitute for the Employee any
person(s) as the Producer of any and all Policies. Simultaneously herewith, the
Employee is executing and delivering to DCAP Insurance the following: (i)
"Change of Broker" forms, executed in blank, covering all Policies for which the
Employee is listed as the Producer and (ii) assignment forms, executed in blank,
pursuant to which the Employee is assigning his appointment as agent and/or
broker for all insurers for which DCAP Insurance is not currently an authorized
agent or broker (in each case, DCAP Insurance having the authority to complete
the forms as it deems fit and deliver them to the particular insurer).
5. AUTOMOBILE; REIMBURSEMENT OF EXPENSES
5.1 During such period as the Employee is employed by the Company pursuant
to this Agreement, the Employee shall be entitled to the use of, for business
purposes only, the Company-leased Corvette and Tahoe currently being used by him
(the "Company Cars"). During such period as the Employee is entitled to the use
of the Company Cars, the Company shall be responsible for all insurance premiums
incurred with respect thereto (not to exceed $3,000 per year) as well as all
expenses for maintenance and repairs with respect thereto. The Employee
acknowledges and agrees that under no circumstances shall the foregoing
provisions create any implication that the Company shall be liable for, or that
the Employee shall be entitled to reimbursement with respect to, any other
insurance premiums, including, without limitation, any life insurance premiums
or premiums with respect to any insurance for any automobile other than the
Company Cars.
5.2 The Company shall pay directly, or reimburse the Employee for, all
other reasonable and necessary expenses and disbursements incurred by the
Employee for and on behalf of the Company in the performance of his duties
during the Term. All determinations as to reasonableness and necessity shall be
made by the CEO in his sole discretion. Notwithstanding the foregoing, in no
event shall the Employee be entitled to reimbursement for (i) any expense
incurred in excess of five hundred dollars ($500) unless such expense was
approved in writing by the CEO prior to the incurrence thereof or (ii) the
charges for the business use of a cellular phone in excess of two hundred
dollars ($200) per month.
5.3 The Employee shall submit to the Company, not less than once in each
calendar month, reports of such expenses and other disbursements (including,
without limitation, gasoline and tolls) in form normally used by the Company and
receipts with respect thereto and the Company's obligations under Paragraphs 5.1
and 5.2 hereof shall be subject to compliance therewith.
5.4 The Employee shall not be entitled to the use of any Company credit or
charge cards or the Company-owned boat for any purposes.
5.5 References in Paragraphs 5.1 and 5.4 hereof to "the Company" shall be
deemed to refer to the appropriate DCAP Company where applicable.
6. RESTRICTIVE COVENANTS
6.1 The services of the Employee are unique and extraordinary and essential
to the business of the Company, especially since the Employee shall have access
to the Company's
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customer lists, trade secrets and other privileged and confidential information
essential to the Company's business. Therefore, the Employee agrees that, if the
term of his employment hereunder shall expire or his employment shall at any
time terminate for any reason whatsoever, with or without cause, the Employee
will not at any time prior to the second annual anniversary of the Expiration
Date (the "Restrictive Covenant Period"), without the prior written consent of
the Company, directly or indirectly, anywhere within five (5) miles of the
location of any office of the Company or any franchisee thereof at the date of
expiration or termination, whether individually or as a principal, officer,
employee, partner, member, manager, director, agent of, or consultant or
independent contractor to, any entity, (i) engage or participate in a business
which, as of such expiration or termination date, is similar to or competitive
with, directly or indirectly, that of the Company and shall not make any
investments in any such similar or competitive entity, except that the foregoing
shall not restrict the Employee from operating the Employee Stores or acquiring
up to one percent (1%) of the outstanding voting stock of any entity whose
securities are listed on a stock exchange or Nasdaq; (ii) cause or seek to
persuade any director, officer, employee, customer, client, account, agent or
supplier of, or consultant or independent contractor to, the Company, or others
with whom the Company has a business relationship (collectively "Business
Associates"), to discontinue or materially modify the status, employment or
relationship of such person or entity with the Company, or to become employed in
any activity similar to or competitive with the activities of the Company;
provided, however, that the Company agrees that the Employee may employ Xxxxx
Xxxxx and Xxx Xxxxxxx in connection with the operation of the Employee Stores;
(iii) cause or seek to persuade any prospective customer, client, account or
other Business Associate of the Company (which at or about the date of cessation
of the Employee's employment with the Company was then actively being solicited
by the Company) to determine not to enter into a business relationship with the
Company or to materially modify its contemplated business relationship; (iv)
hire, retain or associate in a business relationship with, directly or
indirectly, any director, officer or employee of the Company; or (v) solicit or
cause or authorize to be solicited, or accept, for or on behalf of him or any
third party, any business from, or the entering into of a business relationship
with, (a) others who are, or were within one (l) year prior to the cessation of
his employment with the Company, a customer, client, account or other Business
Associate of the Company, or (b) any prospective customer, client, account or
other Business Associate of the Company which at or about the date of such
cessation was then actively being solicited by the Company. The foregoing
restrictions set forth in this Paragraph 6.1 shall apply likewise during the
Term.
6.2 The Employee agrees to disclose promptly in writing to the Board of
Directors of Group all ideas, processes, methods, devices, business concepts,
inventions, improvements, discoveries, know-how and other creative achievements
(hereinafter referred to collectively as "discoveries"), whether or not the same
or any part thereof is capable of being patented, trademarked, copyrighted, or
otherwise protected, which the Employee, while employed by the Company,
conceives, makes, develops, acquires or reduces to practice, whether acting
alone or with others and whether during or after usual working hours, and which
are related to the Company's business or interests, or are used or usable by the
Company, or arise out of or in connection with the duties performed by the
Employee. The Employee hereby transfers and assigns to the Company all right,
title and interest in and to such discoveries (whether conceived, made,
developed, acquired or reduced to practice on or prior to the date hereof or
hereafter during his employment with the Company), including any and all
domestic and foreign copyrights and patent and trademark rights therein and any
renewals thereof. On request of the Company, the Employee will, without any
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additional compensation, from time to time during, and after the expiration or
termination of, the Term, execute such further instruments (including, without
limitation, applications for copyrights, patents, trademarks and assignments
thereof) and do all such other acts and things as may be deemed necessary or
desirable by the Company to protect and/or enforce its right in respect of such
discoveries. All expenses of filing or prosecuting any patent, trademark or
copyright application shall be borne by the Company, but the Employee shall
cooperate in filing and/or prosecuting any such application.
6.3 (a) The Employee represents that he has been informed that it is the
policy of the Company to maintain as secret all confidential information
relating to the Company, including, without limitation, any and all knowledge or
information with respect to secret or confidential methods, processes, plans,
materials, customer lists or data, or with respect to any other confidential or
secret aspect of the Company's activities, and further acknowledges that such
confidential information is of great value to the Company. The Employee
recognizes that, by reason of his employment with the Company, he will acquire
confidential information as aforesaid. The Employee confirms that it is
reasonably necessary to protect the Company's goodwill, and, accordingly, hereby
agrees that he will not, directly or indirectly (except where authorized by the
Board of Directors of the Company), at any time during the term of this
Agreement or thereafter divulge to any person, firm or other entity, or use, or
cause or authorize any person, firm or other entity to use, any such
confidential information.
(b) The Employee agrees that he will not, at any time, remove from the
Company's premises any drawings, notebooks, software, data or other
confidential information relating to the business and procedures heretofore
or hereafter acquired, developed and/or used by the Company, except where
necessary in the fulfillment of his duties hereunder.
(c) The Employee agrees that, upon the expiration or termination of
this Agreement or the termination of his employment with the Company for
any reason whatsoever, he shall promptly deliver to the Company any and all
drawings, notebooks, software, data and other documents and material,
including all copies thereof, in his possession or under his control
relating to any confidential information or discoveries, or which is
otherwise the property of the Company.
(d) For purposes hereof, the term "confidential information" shall
mean all information given to the Employee, directly or indirectly, by the
Company and all other information relating to the Company otherwise
acquired by the Employee during the course of his employment with the
Company (whether on or prior to the date hereof or hereafter), other than
information which (i) was in the public domain at the time furnished to, or
acquired by, the Employee, or (ii) thereafter enters the public domain
other than through disclosure, directly or indirectly, by the Employee or
others in violation of an agreement of confidentiality or nondisclosure.
6.4 For purposes of this Paragraph 6, the term "Company" shall mean and
include the Company, Group, and each of the DCAP Companies in existence from
time to time.
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7. VACATIONS; LEAVE
7.1 The Employee shall be entitled to an aggregate of two (2) weeks
vacation time for the six (6) month period during the Term commencing on the
date hereof, the time and duration thereof to be determined by mutual agreement
between the Employee and the CEO. Any vacation time not used by the end of the
Term shall be forfeited without compensation. In addition, the Employee shall
not be entitled to carry over or use any vacation time and/or sick or personal
days that are unused as of the date hereof.
8. PARTICIPATION IN EMPLOYEE BENEFIT PLANS
8.1 During the Term, the Employee shall be accorded the right to
participate in and receive benefits under and in accordance with the provisions
of any pension, profit sharing, medical and dental insurance or reimbursement
(with family coverage) or other plan or program of the Company either in
existence as of the date hereof or hereafter adopted for the benefit generally
of its executive employees.
9. SERVICE AS OFFICER AND DIRECTOR
9.1 During the Term, the Employee shall, if elected or appointed, serve as
(a) an officer of the Company, Group and/or any subsidiaries of the Company
and/or Group in existence or hereafter created or acquired and (b) a director of
the Company, Group and/or any such subsidiaries of the Company and/or Group, in
each case without any additional compensation for such services.
10. EARLIER TERMINATION
10.1 The Employee's employment hereunder shall automatically terminate upon
his death and may terminate at the option of the Company in the event of "cause"
(as hereinafter provided).
10.2 The Employee's employment may be terminated by the Company at any time
during the Term upon written notice for "cause". As used in this Agreement,
"cause" shall mean the Employee's commission of any act in the performance of
his duties constituting common law fraud, a felony or other gross malfeasance of
duty, the Employee's commission of any act involving moral turpitude, any
material misrepresentation by the Employee (including, without limitation, a
breach of any representation set forth in Paragraph 12.1 hereof or in the letter
agreement of even date between the Employee and Group pursuant to which the
Employee is agreeing to transfer to Group certain shares of Group owned by him),
any breach of any material covenant on the Employee's part herein set forth, or
the Employee's engagement in misconduct which is materially injurious to the
Company, Group or any of their respective subsidiaries.
10.3 In the event of the termination of the Employee's employment by the
Company during the Term without "cause," as liquidated damages, the Employee
shall be entitled to receive, within thirty (30) days following the date of
termination of employment, a lump sum payment equal to the compensation to which
he would have been entitled until the expiration of the
6
Term pursuant to Paragraph 4.2 hereof . The amount to be paid to the Employee
pursuant to this Paragraph 10.3 shall constitute the sole and exclusive remedy
of the Employee, and the Employee shall not be entitled to any other or further
compensation, rights or benefits hereunder or otherwise.
11. INJUNCTIVE RELIEF; REMEDIES
11.1 The Employee acknowledges and agrees that, in the event he shall
violate or threaten to violate any of the restrictions of Paragraph 3 or 6
hereof, the Company will be without an adequate remedy at law and will therefore
be entitled to enforce such restrictions by temporary or permanent injunctive or
mandatory relief in any court of competent jurisdiction without the necessity of
proving damages.
11.2 The Employee agrees further that the Company shall have the following
additional rights and remedies:
(i) The right and remedy to require the Employee to account for and
pay over to the Company all profits derived or received by him as the
result of any transactions constituting a breach of any of the provisions
of Paragraph 6.1, and the Employee hereby agrees to account for and pay
over such profits to the Company; and
(ii) The right to recover attorneys' fees incurred in any action or
proceeding in which it seeks to enforce its rights under Paragraph 6 hereof
and is successful on any grounds.
11.3 Each of the rights and remedies enumerated above shall be independent
of the other, and shall be severally enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
11.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Paragraph 6.1 upon the courts of any jurisdiction
within the geographical scope of such covenants (a "Jurisdiction"). In the event
that the courts of any one or more of such Jurisdictions shall hold such
covenants unenforceable by reason of the breadth of their scope or otherwise, it
is the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other Jurisdiction, as to breaches of such covenants in such other respective
Jurisdictions, the above covenants as they relate to each Jurisdiction being,
for this purpose, severable into diverse and independent covenants.
12. NO RESTRICTIONS
12.l The Employee hereby represents that neither the execution of this
Agreement nor his performance hereunder will (a) violate, conflict with or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under
the terms, conditions or provisions of any contract, agreement or other
instrument or obligation to which the Employee is a party, or by which he may be
bound, or (b) violate any order, judgment, writ, injunction or decree applicable
to the Employee. In the event of a breach hereof, in addition to the Company's
right to terminate this Agreement, the Employee shall indemnify the Company and
hold it harmless from and against any and all claims, losses, liabilities,
7
costs and expenses (including reasonable attorneys' fees) incurred or suffered
in connection with or as a result of the Company's entering into this Agreement
or employing the Employee hereunder.
13. ARBITRATION
13.1 Except with regard to Paragraph 11.1 hereof and any other matters that
are not a proper subject of arbitration, all disputes between the parties hereto
concerning the performance, breach, construction or interpretation of this
Agreement or any portion thereof, or in any manner arising out of this Agreement
or the performance thereof, shall be submitted to binding arbitration, in
accordance with the rules of the American Arbitration Association, which
arbitration shall be carried out in the manner hereinafter set forth.
13.2 Within twenty (20) days after written notice by one party to the other
of its demand for arbitration, which demand shall set forth the name and address
of its arbitrator, the other party shall select its arbitrator and so notify the
demanding party. Within twenty (20) days thereafter, the two arbitrators so
selected shall select the third arbitrator. The decision of any two (2)
arbitrators shall be binding upon the parties. In default of either side naming
its arbitrator as aforesaid or in default of the selection of the said third
arbitrator as aforesaid, the American Arbitration Association shall designate
such arbitrator upon the application of either party. The arbitration proceeding
shall take place at a mutually agreeable location in Nassau County, New York or
such other location as agreed to by the parties.
13.3 A party who files a notice of demand for arbitration must assert in
the demand all claims then known to that party on which arbitration is permitted
to be demanded. When a party fails to include a claim through oversight,
inadvertence or excusable neglect, or when a claim has matured or been acquired
subsequently, the arbitrators may permit amendment. A demand for arbitration
shall be made within a reasonable time after the claim has arisen, and in no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim would be barred by the applicable statute of
limitations.
13.4 The award rendered by the arbitrators shall be final, binding and
conclusive, shall be specifically enforceable, and judgment may be entered upon
it in accordance with applicable law in the appropriate court in the State of
New York, with no right of appeal therefrom.
13.5 Each party shall pay its or his own expenses of arbitration, and the
expenses of the arbitrators and the arbitration proceeding shall be equally
shared; provided, however, that, if, in the opinion of a majority of the
arbitrators, any claim or defense was unreasonable, the arbitrators may assess,
as part of their award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators and the
arbitration proceeding against the party raising such unreasonable claim or
defense; provided, further, that, if the arbitration proceeding relates to the
issue of "cause" for termination of employment, (a) if, in the opinion of a
majority of the arbitrators, "cause" existed, the arbitrators shall assess, as
part of their award, all of the arbitration expenses of the Company (including
reasonable attorneys' fees) and of the arbitrators and the arbitration
proceeding against the Employee or (b) if, in the opinion of a majority of the
arbitrators, "cause" did not exist, the arbitrators shall assess, as part of
their award, all of the
8
arbitration expenses of the Employee (including reasonable attorneys' fees) and
of the arbitrators and the arbitration proceeding against the Company.
14. ASSIGNMENT
14.1 This Agreement, as it relates to the employment of the Employee, is a
personal contract and the rights and interests of the Employee hereunder may not
be sold, transferred, assigned, pledged or hypothecated.
15. NOTICES
15.1 Any notice required or permitted to be given pursuant to this
Agreement shall be deemed to have been duly given when delivered by hand or sent
by certified or registered mail, return receipt requested and postage prepaid,
overnight mail or courier or telecopier as follows:
If to the Employee:
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Miles X. Xxxxxxxx, Esq.
Telecopier Number: (000) 000-0000
If to the Company:
0000 Xxxxxxxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopier Number: (000) 000-0000
with a copy to:
Certilman Balin Xxxxx & Xxxxx, LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier Number: (000) 000-0000
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or at such other address as any party shall designate by notice to the other
party given in accordance with this Paragraph 15.1.
16. GOVERNING LAW
16.1 This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in New York.
17. WAIVER OF BREACH; PARTIAL INVALIDITY
17.1 The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. If any provision, or part thereof, of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and not in any way affect or render invalid or unenforceable
any other provisions of this Agreement, and this Agreement shall be carried out
as if such invalid or unenforceable provision, or part thereof, had been
reformed, and any court of competent jurisdiction or arbitrators, as the case
may be, are authorized to so reform such invalid or unenforceable provision, or
part thereof, so that it would be valid, legal and enforceable to the fullest
extent permitted by applicable law.
18. ENTIRE AGREEMENT
18.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and there are no representations,
warranties or commitments except as set forth herein. This Agreement supersedes
all prior agreements, understandings, negotiations and discussions, whether
written or oral, of the parties hereto relating to the subject matter hereof,
including, but not limited to, the Earlier Agreement; provided, however, that
the foregoing shall not be construed to mean that this Agreement supersedes or
otherwise affects the Restrictive Covenant Agreement dated February 25, 1999
from the Employee to the Company (the "Restrictive Covenant Agreement") or any
other agreement entered into between the Employee and the Company and/or Group
and/or any other DCAP Company in connection with the sale by the Employee to
Group of his shares of the Company and affiliated entities each of which shall
continue in full force and effect in accordance with its terms (except, in the
case of the Earlier Agreement). The Employee also acknowledges and agrees that
the restrictions placed upon him pursuant to the provisions of this Agreement
and the Restrictive Covenant Agreement are in addition to, and not in lieu of,
the restrictions set forth in the Franchise Agreements contemplated to be
entered into between the Company and each of DCAP Medford, Inc., DCAP Bayshore,
Inc. and DCAP Seaford, Inc. (collectively, the "Franchise Agreements"). The
rights and remedies set forth in this Agreement, the Restrictive Covenant
Agreement and the Franchise Agreements are cumulative. This Agreement may be
amended, and any provision hereof waived, only by a writing executed by the
party sought to be charged.
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19. COUNTERPARTS
19.1 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
20. FACSIMILE SIGNATURES
20.1 Signatures hereon which are transmitted via facsimile shall be deemed
original signatures.
21. REPRESENTATION BY COUNSEL; INTERPRETATION
21.1 The Employee acknowledges that he has been represented by counsel in
connection with this Agreement. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the Employee. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
22. HEADINGS
22.1 The headings and captions under sections and paragraphs of this
Agreement are for convenience of reference only and do not in any way modify,
interpret or construe the intent of the parties or affect any of the provisions
of this Agreement.
23. THIRD PARTY BENEFICIARIES
23.1 Each of Group and each of the DCAP Companies is an intended third
party beneficiary of, and shall be entitled to enforce, the provisions of this
Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year above written.
DCAP MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
/s/ Xxxxx Xxxx
--------------
Xxxxx Xxxx
AGREED AS TO SECTION 1.1:
DCAP GROUP, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxxxxx, Chief Executive Officer
SCHEDULE 3.1
DCAP Bayshore, Inc.
DCAP Medford, Inc.
DCAP Seaford, Inc.
SCHEDULE 4.4
Farmers and Traders Life Insurance Company - Maximum of 20 Policies
