EXHIBIT 10.71
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is entered into this third
day of July, 2002, by THE MIIX GROUP, INCORPORATED (the "MIIX Group") and NEW
JERSEY STATE MEDICAL UNDERWRITERS, INC. (the "Underwriter"), in each case,
including their respective subsidiaries, affiliates, officers, directors,
agents, employees, successors and assigns (hereinafter referred to,
collectively, as the "Company"), and XXXXXXX X. XXXXXX, including his
successors, assigns and estate (hereinafter referred to, collectively, as the
"Employee"). The Company and the Employee are hereinafter referred to,
collectively, as the "Parties."
W I T N E S S E T H :
WHEREAS, the Parties have entered into an Employment Agreement, dated
as of March 15, 2002 (the "Employment Agreement"), pursuant to which the Company
has employed the Employee; and
WHEREAS, the Company and the Employee have mutually agreed to the
voluntary termination of the employment of the Employee under the Employment
Agreement as of the Termination Date; and
WHEREAS, the Parties have agreed to the payment of a lump sum amount to
the Employee as specified herein in lieu of all other payments or benefits due
or alleged to be due to the Employee under the Employment Agreement upon the
termination of the Employee's employment with the Company or otherwise and to
mutually release each other from any and all liability under the Employment
Agreement or otherwise as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. TERMINATION OF EMPLOYMENT: The Parties agree that the Employee has
voluntarily resigned from employment with the Company and from all positions as
an officer of the Company as of June 4, 2002 (the "Termination Date"). The
Employee shall perform no further services for and shall have no authority to
act on behalf of the Company after the Termination Date.
It is agreed that the Employee shall not be considered an employee of
the Company after the Termination Date; accordingly, any and all benefits of
employment which are not expressly provided for herein shall not accrue to the
Employee after the Termination Date.
2. PAYMENT TO THE EMPLOYEE: Subject to the Employee's acceptance of
and compliance with all of the terms and conditions set forth in this Agreement,
the Company shall pay to the Employee in lieu of all other payments or benefits
of any kind or nature whatsoever (including, without limitation, retention
bonuses, cash incentive payments, stock option grants, stock grants, employee
benefits and vacation compensation) due or alleged to be due to the Employee
under the Employment Agreement or otherwise, the sum of One Hundred and Fifteen
Thousand Dollars ($115,000), less applicable deductions, including without
limitation, federal and state withholdings, which shall be paid to the Employee
as soon as practicable after the Effective Date of this Agreement.
3. RELEASE BY THE EMPLOYEE: Except for the duties and obligations
expressly provided for in this Agreement, the Employee hereby releases and
forever discharges the Company from any and all causes of action, claims or
demands, known or unknown, up to the date of this Agreement, including without
limitation (i) those relating to any obligation or liability of the Company to
the Employee under the Employment Agreement, the Non-Qualified Stock Option
Agreement or the Restricted Stock Grant between the Company and the Employee
effective March 15, 2002 and all other related agreements; ( ii) those relating
to his employment with the Company or the termination thereof; (iii) those in
tort including, but not limited to, those for wrongful or retaliatory discharge
in violation of public policy or defamation; (iv) those in contract, whether
express or implied; (v) those under any Company policy, procedure or benefit
plan; or (vi) those under any federal, state or local law, including but not
limited to Title VII of the Civil Rights Act, the Americans With Disabilities
Act, the Age Discrimination in Employment Act, the Employee Retirement Income
Security Act, the New Jersey Conscientious Employee Protection Act, the New
Jersey Law Against Discrimination and any other federal, state or local law,
rule or regulation pertaining to employment, wages, discrimination, retaliation,
or any other terms and conditions of employment. The Employee gives up any claim
to reinstatement and will not apply for re-employment with the Company.
4. RELEASE BY THE COMPANY: Except for the duties and obligations
expressly provided for in this Agreement, the Company hereby releases and
forever discharges the Employee from any and all causes of action, claims or
demands, known or unknown, up to the date of this Agreement, including without
limitation (i) those relating to any obligation or liability of the Employee to
the Company under the Employment Agreement, the Non-Qualified Stock Option
Agreement or the Restricted Stock Grant between the Company and the Employee
effective March 15, 2002 and all other related agreements; ( ii) those relating
to his employment with the Company or the termination thereof; (iii) those in
tort including, but not limited to, those in violation of public policy or
defamation; (iv) those in contract, whether express or implied; and (v) those
under any Company policy, procedure or benefit plan.
5. COMPLETE CONSIDERATION: The Employee acknowledges and agrees that
the above-described consideration is the total consideration which the Employee
shall receive from the Company and that he is not entitled to any additional
payments or consideration of
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any kind whatsoever under any agreement with the Company or the Company's
policies or benefit plans.
6. CONFIDENTIALITY/RETURN OF CONFIDENTIAL INFORMATION: The Employee
acknowledges and agrees that he continues to be bound by the confidentiality
provisions contained in Section 6 of the Employment Agreement, which provide,
among other things, that the Employee shall not disclose or use at any time any
of the Company's Confidential Information (as defined in the Employment
Agreement). The Employee further acknowledges and agrees that he is bound by the
provisions of Section 6.2 of the Employment Agreement pursuant to which the
Employee immediately shall deliver to the Company as of the Termination Date all
documents and materials containing Confidential Information relating to the
business or affairs of the Company and all other documents, materials and other
property belonging to the Company or its affiliates, or their customers or
clients, that are in the possession or under the control of the Employee.
7. NON-DISPARAGEMENT: (i) The Employee agrees not to make any
disparaging remarks or negative comments about the Company, its business
practices or its personnel matters to any person or entity and not to interfere
with the relationship of the Company with its customers or vendors, or request
or cause any of the Company's customers or vendors to alter, cancel or terminate
any business relationship with the Company.
(ii) The Company agrees not to make any disparaging remarks or
negative comments about the Employee, his business practices or his personal
matters to any person or entity and shall in response to any reference check,
consistent with the Company's normal practice, provide only the dates of the
Employee's employment with the Company, his job title and responsibilities and
his salary.
8. NO ADMISSION: Each Party acknowledges that nothing contained in
this Agreement is intended to constitute an admission on the part of either
Party or of any liability whatsoever or of a violation of any law. Accordingly,
this Agreement shall not be admissible as evidence in any proceeding as an
admission, but only in a proceeding to enforce its terms.
9. GOVERNING LAW; JURISDICTION: This Agreement shall be governed by
and construed in accordance with the laws of the State of New Jersey, without
giving effect to the conflict of law principles thereof. The Parties agree to
submit to the jurisdiction of any federal or state court sitting in New Jersey
in any action concerning the enforcement or breach of this Agreement.
10. SEVERABILITY: Should any provisions of this Agreement be held to
be illegal, void or unenforceable, such provision shall be of no force and
effect. However, the illegality or unenforceability of any such provision shall
have no effect upon, and shall not impair the enforceability of, any other
provision of this Agreement.
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11. ENTIRE AGREEMENT: This Agreement contains the complete
understanding between the Company and Employee, and no other promises or
agreements shall be binding unless in writing and signed by such Parties.
12. COUNTERPARTS: This Agreement may be executed in counterparts and
by facsimile signature, each of which shall be deemed to constitute an original
and all of which when taken together shall constitute one and the same
instrument.
THE EMPLOYEE ACKNOWLEDGES THAT (I) HE HAS REVIEWED THIS AGREEMENT AND
THE RELEASE CONTAINED IN IT WITH THE ADVICE AND ASSISTANCE OF COUNSEL OF HIS
CHOICE; ( II) HE HAS HAD TWENTY-ONE (21) DAYS TO INDICATE HIS DECISION TO ACCEPT
THE PAYMENT PROVIDED FOR IN THIS AGREEMENT, OR TO REJECT THE OFFERED PAYMENT BY
NOT SIGNING THIS AGREEMENT; AND (III) HE HAS HAD SEVEN (7) DAYS AFTER SIGNING
THIS AGREEMENT TO CHANGE HIS MIND AND REVOKE THIS AGREEMENT. THIS AGREEMENT AND
THE RELEASE IN IT BECOME EFFECTIVE SEVEN (7) DAYS AFTER THE EMPLOYEE HAS SIGNED
IT (THAT IS, THE AGREEMENT'S "EFFECTIVE DATE") IF THE EMPLOYEE HAS NOT EXERCISED
HIS RIGHT DURING THAT TIME PERIOD TO REVOKE THE AGREEMENT.
BY SIGNING BELOW, THE COMPANY AND THE EMPLOYEE ACKNOWLEDGE AND AGREE
THAT THEY HAVE CAREFULLY READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, ENTER
INTO THIS AGREEMENT KNOWINGLY, VOLUNTARILY AND OF THEIR OWN FREE WILL,
UNDERSTAND ITS TERMS AND SIGNIFICANCE AND INTEND TO ABIDE BY ITS PROVISIONS
WITHOUT EXCEPTION.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date indicated opposite their respective names.
Date:
----------------- ---------------------------
XXXXXXX X. XXXXXX
THE MIIX GROUP, INCORPORATED
Date:
----------------- By:_______________________________
Name:
Title:
NEW JERSEY STATE MEDICAL
UNDERWRITERS, INC.
Date:
----------------- By:______________________________
Name:
Title:
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