SEVERANCE AGREEMENT AND GENERAL RELEASE
This SEVERANCE AGREEMENT AND GENERAL RELEASE (the "Agreement") is made
by and between Xxxxxxxxx.xxx Inc. 00000 X. Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxx
Xxxxxx, Xxxxx 00000 ("Claimsnet"), and Xxxxx X. Xxx ("Employee").
1. Background. Employee's employment with Claimsnet has ceased
effective on June 16, 2000.
2. Consideration. As consideration for this Agreement, Claimsnet agrees
to pay to the order of Employee, the sum of ONE HUNDRED SIXTY-TWO THOUSAND FIVE
HUNDRED AND NO/100 DOLLARS ($162,500.00) and has agreed to the other terms and
conditions of this Agreement Employee acknowledges the sufficiency of this
Consideration and further acknowledges that the Consideration is in excess of
that which Employee would be entitled to absent the execution of this Agreement.
As consideration for this Agreement, Employee has agreed resign from the Board
of Directors of Claimsnet and has agreed to the release and other terms and
conditions of this Agreement.
3. Schedule of Payments. The ONE HUNDRED SIXTY-TWO THOUSANDS FIVE
HUNDRED AND NO/100 DOLLARS ($162,500) consideration is to be paid (or has been
paid, as the case may be) to the Employee in the amounts and schedule set forth
on Exhibit A. The first payment in the gross amount of $23,214.29 has already
been made. The remaining payments shall commence with the next employee payroll
period and will be made in concurrence with the bi-weekly payroll period of
Claimsnet in the gross amount of $11,607.15 for 12 pay periods. Each payment
will have Federal Tax withheld at a flat 28% rate and Medicare and FICA
deductions withheld at statutory rates. Employee voluntary 401(k) contributions
shall be deducted as permitted by law and according to Employee's instructions
to the plan administrator (currently, 5% of gross pay). The final payments shall
be net of deductions to repay all amounts due and owing by the employee to
Claimsnet by reason of the loan of Claimsnet to the Employee in the original
principal amount of $25,000, plus interest accrued through June 22, 2000, in the
amount of $4,261.02. Payments made to the employee, but applied to payment of
the loan, shall be reflected as income to the employee on a Form W-2 or Form
1099 to be provided for year 2000 tax filings.
4. Late Payments. In the event that any of the payments called for in
the immediately preceding numbered paragraph are not received by the Employee
within fifteen (15) days after the due date, the Employee shall have the option
to accelerate all remaining payments due, upon written notice to Claimsnet.
5. Tax Responsibility. Employee hereby assumes any and all
responsibility for federal, state, or local income tax liability for any monies
paid to Employee pursuant to this Agreement. If
any governmental body determines that tax is owed by Employee ("Tax") and that
the Tax should have been withheld in addition to those amounts already withheld
by Claimsnet, Employee expressly represents that he will pay the Tax, and any
associated penalties and interest, and shall hold Claimsnet harmless for such
Tax, and any associated penalties and interest.
6. Release. Except for breaches of this Agreement, Employee and his
representatives, heirs, successors, and assigns do hereby completely release and
forever discharge Claimsnet, its Affiliate companies (as defined below), and its
and their present and former shareholders, officers, directors, agents,
employees, attorneys, successors, and assigns (collectively, "Released Parties")
from all claims, rights, demands, actions, obligations, liabilities, and causes
of action of every kind and character, known or unkown, mature or unmatured,
which Employee may now have or has ever had arising from or in any way related
to his employment by Claimsnet, including, without limitation, the termination
thereof and Employee's efforts to find subsequent employment, whether based on
tort, contract (express or implied), or any federal, state or local law, statute
or regulation (collectively, the "Released Claims"). Specifically and not in
limitation of the foregoing release, the Released Claims shall include any
claims arising under Title VII of the Civil Rights Act of 1964, and the
Americans with Disabilities Act, the Age Discrimination in Employment Act, the
Older Workers Benefit Protection Act, the Employee Retirement Income Security
Act, the Civil Rights Act of 1991, the Fair Labor Standards Act, as well as any
claims asserting wrongful termination, breach of contract, breach of the
covenant of good faith and fair dealing, negligent or intentional infliction of
distress, negligent or intentional interference with contract or prospective
economic advantage, defamation, invasion of privacy, and claims related to
disability. Released Claims shall also include, but not be limited to, claims
for wages or salary, severance pay, bonuses, sick leave, vacation pay, life or
health insurance, or any other fringe benefit, except for Employee's COBRA
rights/benefits. Employee likewise releases the Released Parties from any and
all obligations for attorneys' fees incurred in regard to the above claims or
otherwise. Notwithstanding the foregoing, this Release is not intended to be,
and shall not be construed to be, a bar to Employee's rights, if any, to
unemployment compensation. For purposes of this Agreement, "Affiliate" shall be
defined as ANC Holdings, Inc., National Financial Corporation, American Medical
Finance, Inc., American Tuition Finance, Inc. or any person or entity that
directly or indirectly controls, is controlled by, or is under common control
with Claimsnet, National Financial Corporation, American Tuition Finance, Inc.
and/or American Medical Finance, Inc.
7. Warranty/Covenant Not To Assert Claims. Employee warrant that he has
not initiated or filed any claims of any type against any Released Party with
any court, governmental or administrative agency, and covenants that he will not
do so in the future, directly or indirectly, nor will he assist others in doing
so.
8. Nonadmission. The parties hereto mutually understand and agree that
this Agreement is not intended to and does not constitute any admission of
fault, wrongdoing, responsibility or liability on the part of Claimsnet.
Employee understands and acknowledges that Claimsnet has denied, continues to
deny, and will deny in the future all allegations of wrongdoing, liability, or
other impropriety, breach of contract, or illegality, if any, regarding
Employee's treatment as an employee or the termination of his employment with
Claimsnet.
9. Confidential Information. Employee agrees not to divulge, reveal,
communicate, or use for the benefit of himself or any person or entity other
than Claimsnet, to the detriment of Clamsnet, any of Claimsnet's or its
Affiliates' confidential or proprietary information. "Confidential information"
includes (as an illustration and not a limitation): (i) security codes; (ii)
financial and business information generated by or for the benefit of Claimsnet;
(iii) strategic plans; (iv) customer lists, personnel and salary information;
(v) product development and market research; (vi) vendor information that
Claimsnet is obligated to keep in confidence, or (vii) software or source code
information. "Propriety information" includes, but is not limited to, any
materials, documents, software, source codes and files for which Claimsnet, ANC
Holdings, Inc., National Financial Corporation, American Tuition Finance, Inc.
and/or American Medical Finance, Inc. claims or claimed ownership or authorship.
10. Goodwill. The parties to this Agreement shall not make any comments
to any person or entity that are adverse to the other party's interest or that
reflect negatively on the other party. Consistent with this provision, Claimsnet
will follow its standard practices regarding employment references.
11. Confidentiality of Agreement. The parties will treat the terms of
this Agreement and the negotiations surrounding it as confidential. Employee
will not disclose to any person, including but not limited to mean employees or
former employees of Claimsnet or its Affiliates, the terms of this Agreement
except disclosure may be made to the following: a) in confidence to his spouse;
b) his attorney and tax-advisor, if any; or, c) where requried by law. Employee
shall instruct and require each such person to hold the terms of this Agreement
in confidence.
12. Review and Right of Revocation. Employee hereby acknowledges that
Claimsnet has advised him, in writing and by this writing specifically, to
consult an attorney prior to signing this Agreement. Employee has two (2)
business days from the date this Agreement is presented to decide whether to
sign it. If Employee signs this Agreement within this two (2) day period,
Employee will be able to revoke his acceptance of this Agreement at any time
during the three (3) calendar days following execution of this Agreement by him.
In order to effectuate Employee's revocation, he must notify Xx X. Xxxxx, in
writing, at Claimsnet, 00000 X. Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxx Xxxxxx,
Xxxxx 00000. If Employee signs this Agreement within this two (2) day period,
this Agreement shall not take effect and shall not be enforceable until after
the three (3) days has passed without Claimsnet receiving a written revocation
from Employee.
13. Waiver. As further consideration for this Agreement and for the
purposes of implementing a full and complete release and discharge of Claimsnet,
Employee expressly acknowledges that this Agreement is intended to include in
its effect, without limitation, any claims which he does not know or suspect to
exist in his favor at the time of execution hereof, and the Agreement
contemplates the extinguishment of any such claim or claims.
14. Future Employment. Employee shall not at any time in the future
seek employment with Claimsnet, ANC Holdings, Inc., National Financial
Corporation, American Tuition Finance Inc. and/or American Medical Finance,
Inc., and agrees that Claimsnet, National Financial Corporation, American
Tuition Finance, Inc. and/or American Medical Finance, Inc. shall not at any
time be under any obligation to employ him or consider him for employment.
15. Cooperation. Employee shall cooperate with Claimsnet in the orderly
transfer of Employee's responsibilities to other person(s).
16. Return of Property. Employee shall promptly return to Claimsnet all
property of Claimsnet, National Financial Corporation, and/or American Medical
Finance, Inc., including, without limitation, all equipment, tangible
proprietary information, documents, books, records, reports, contracts, lists,
computer disks (or other computer-generated files or data), or copies thereof,
created on any medium, prepared or obtained by Employee in the course of or
incident to his employment with Claimsnet.
17. Integration. The parties understand and agree that the preceding
Sections recite the sole consideration of this Agreement, that no representation
or promise has been made by Claimsnet, Employee, or any Released Party, on any
subject whatsoever, except as expressly set forth in this Agreement; and that
all agreements and understandings between the parties on any subject whatsoever
are embodied and expressed in this Agreement. This agreement shall supersede all
prior agreements and understandings among Employee, Claimsnet, and any Released
Party, whether written or oral, express or implied, with respect to any subject
whatsoever, including without limitation, any employment-related agreement or
benefit, except to the extent that the provisions of any such agreement or
benefit have been expressly referred to in this Agreement as having continued
effect.
18. Assignment; Successors and Assigns. Employee agrees that he will
not assign, sell, transfer, delegate, or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any rights or obligations
under this Agreement. Any such purported assignment, transfer, or delegation
shall be null, void and of no force and effect. Employee represents that he has
not previously assigned or transferred any claims or rights released by him
pursuant to this Agreement. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, successors, attorneys, and permitted assigns. This Agreement shall also
inure to the benefit of any Released Party. This Agreement shall not benefit
any other person or entity except as specifically enumerated in this Agreement.
19. Severability. If any provision of this Agreement, or its
application to any person, place or circumstances, is held by an arbitrator or a
court of competent jurisdiction to be invalid, unenforceable, or void, such
provision shall be enforced to the greatest extent permitted by law, and the
remainder of this Agreement and such provision as applied to other persons,
places, and circumstances shall remain in full force and effect.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Texas, without regard to conflicts of
law or choice of law rules.
21. Interpretation. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party. By way
of example and not in limitation, this Agreement shall not be construed in favor
of the party receiving a benefit nor against the party responsible for any
particular language in this Agreement.
22. Execution. Employee acknowledges that he had at least two(2)
business days from his receipt of the Agreement, within which to consider
whether or not to sign the Agreement.
23. Acknowledgments. Employee hereby acknowledges that Employee is
entering this Agreement knowingly and voluntarily, and further acknowledges that
(a) this Agreement is written in a manner understood by Employee and is fully
understood in all respects by Employee; (b) this Agreement refers to and
specifically waives claims under the Age Discrimination in Employment Act, as
amended, except to the extent that such claims arise after the date of this
Agreement; (c) Employee has received valuable consideration in exchange for the
waiver and release of claims included in this Agreement which substantially
exceeds amounts that Employee would otherwise be entitled to receive; (d)
Employee has been advised by Claimsnet in writing to consult with an attorney
prior to executing this Agreement; (e) Employee may take until two (2) business
days from his receipt of the Agreement to consider whether or not to sign the
Agreement; and (f) Employee shall have three (3) days following execution to
revoke this Agreement and the Agreement shall not take effect until those three
(3) days have ended.
WITNESS the following signatures by the respective parties.
Employee: Claimsnet:
Xxxxxxxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxx By: /s/ Xx X. Xxxxx
------------------------------- ------------------------------
Xxxxx X. Xxx Xx X. Xxxxx, President
Date: 6/28/00 Date: June 28, 2000
------------------- ---------------------
Exhibit A
Statutory Deductions Voluntary Deductions
----------------------------------- ---------------------
Pay date Gross Pay Soc. Sec. FICA Fed W/H After Tax 401(k) Loan Net Pay
-------- --------- --------- ---- ------- --------- ------ ---- -------
6/19/00 23,214.29 (318.30) (336.61) (6,175.00) 16,384.38 (1,160.71) 15,223.67
7/7/00 11,607.15 (168.30) (3,087.50) 8,361.36 (580.36) 7,770.99
7/21/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
8/4/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
8/18/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
9/1/00 11.607.15 (168.30) (3,087.50) 8,351.36 (580.36) 7,770.99
9/15/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
9/29/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
10/13/00 11,667.15 (168.30) (3,087.50) 8,351.35 (580.36) 7,770.99
10127/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) (5,948.05) 1,822.94
11/10/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) (7,770.99) -
11/24/00 11,607.15 (168.30) (3,087.50) 8,351.35 (580.36) (7,770.99) -
12/8/00 11,607.15 (168.30) (3,087.50) 8,351.36 (580.36) (7,770.99) -
------------------------------------------------------------------------------------------------------------------
162,500.09 (318.30) (2,356.21) (43,225.00) 116,600.58 (8,125.03) (29,261.02) 79,214.53
==================================================================================================================
