EXHIBIT 10.55
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 31, 2001,
among THE MIIX GROUP, INCORPORATED, a Delaware corporation ("MIIX Group"), NEW
JERSEY STATE MEDICAL UNDERWRITERS, INC., a New Jersey corporation
("Underwriter"), each having offices at Two Princess Road, Lawrenceville, New
Jersey (together, the "Company") and XXXXXXXXX X. XXXXXXXX (the "Employee"),
residing at 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, MIIX Group is the parent company of Underwriter owning all of the
issued and outstanding common stock of Underwriter; and
WHEREAS, the Company deems it to be in its best interest to secure and
retain for the Company the services of the Employee and the Employee desires to
work for the Company upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
contained herein and intending to be legally bound hereby, the parties hereto
agree, as follows:
1. POSITION AND DUTIES. The Employee is engaged hereunder as Vice
President and Secretary of MIIX Group and agrees to perform the duties and
services incident to that position, or such other or further duties and services
of a similar nature as may be required of her by the Chief Executive Officer or
such other superior officer of MIIX Group. The Employee agrees that, if
requested, she shall serve as an officer of the Company and/or of any affiliate,
without additional compensation. The Employee shall have the power and authority
as shall reasonably be required to enable her to perform her duties under this
Agreement in an efficient manner. The Employee agrees to perform the duties and
responsibilities called for hereunder to the best of her ability and to devote
her full time, energies and skills to such duties and to the promotion of the
business and interests of the Company and any affiliate. The Employee may
participate in charitable and similar activities, may be a director of a company
that does not compete with the Company or any affiliate (which shall not include
a "competitor" as defined by Section 5.1 of this Agreement) and may have
business interests in passive investments which, from time to time, may require
portions of her time, but such activities shall be performed in a manner
consistent with her obligations hereunder.
2. COMPENSATION AND OTHER BENEFITS.
2.1. BASE SALARY. The Company shall pay to the Employee for the
performance of her duties hereunder, an initial base salary of $115,000 per
annum (the "Base Salary"), payable in accordance with the Company's normal
payroll practices. Thereafter, the amount of the Base Salary may be reviewed and
adjusted as appropriate by the Board of Directors of MIIX Group, taking into
account the recommendation of the Chief Executive Officer or such other superior
officer of MIIX Group, in accordance with executive compensation review
practices.
2.2. CASH INCENTIVE PLAN. The Employee shall be eligible to receive
an annual bonus pursuant to MIIX Group's Cash Incentive Plan, or similar plans
which may be in effect from time to time, at the discretion of the Board of
Directors of MIIX Group, based on the Company's and the Employee's achievement
of goals and objectives established by the Board on an annual basis. The Board
shall use its reasonable judgment in determining whether such goals and
objectives have been met and the amount, if any, of the bonus to be paid to the
Employee. It is anticipated that any bonus will be paid on or before March 31 of
the succeeding year.
2.3. LONG TERM INCENTIVE EQUITY PLAN. The Employee shall be
entitled to participate in MIIX Group's Long Term Incentive Equity Plan, or
similar plans which may be in effect from time to time for executives of the
Company. Any awards to the Employee under the Long Term Incentive Equity Plan
shall be at the sole discretion of the Board of Directors of MIIX Group and
shall be based on the achievement of performance goals established by the Board.
The Employee shall be entitled to receive dividend equivalents on option shares
under Stock Options granted to the Employee pursuant to the Long Term Incentive
Equity Plan as dividends are declared and paid on the common stock of MIIX
Group, provided, however, that any such dividend equivalents, and the interest
earned thereon, shall be forfeited as to any unvested option shares that are
forfeited by the Employee pursuant to the terms of the Long Term Incentive
Equity Plan.
2.4. DEFERRED COMPENSATION. The Employee shall be eligible to
participate in the Company's Deferred Compensation Plan, or similar plans which
may be in effect from time to time, by which the Employee is permitted to defer
compensation and receive benefits in a future year in accordance with the terms
of the Deferred Compensation Plan. The Employee and the Company shall,
simultaneous with the execution of this Agreement, execute the Deferred
Compensation Plan, a copy of which is attached hereto as Exhibit A.
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2.5. EMPLOYEE BENEFITS. During the term of this Agreement, the
Employee shall be entitled to participate in all of the benefit programs
provided to similar employees of the Company, including, without limitation, all
medical, disability, dental and life insurance benefits, retirement programs,
incentive compensation plans, automobile expense reimbursement programs and
other employee benefit programs now in existence or hereafter adopted by the
Company, as such plans, programs, practices or policies may be in effect from
time to time.
2.6. VACATION. In addition to such holidays as are established by
the policies of the Company, the Employee shall be entitled to paid time off in
accordance with the Company's Paid Time Off policy as applicable to executives
of the Company, as in effect from time to time, during which her compensation
shall be paid, provided, however, that the Employee may not take more than two
consecutive weeks of vacation without the prior approval of the Chief Executive
Officer or such other superior officer of MIIX Group. Unused vacation time can
be carried over only in accordance with the Company's Paid Time Off policy.
2.7. REIMBURSEMENT OF EXPENSES. The Company shall reimburse the
Employee for all reasonable expenses incurred by the Employee in connection with
her employment hereunder, provided, however, that such expenses were incurred in
conformance with the policies of the Company, as established from time to time,
and the Employee submits detailed vouchers and other records reasonably required
by the Company in support of the amount and nature of such expenses.
2.8. TAXES AND WITHHOLDING. All compensation payable and other
benefits provided under this Agreement shall be subject to customary withholding
for income, F.I.C.A. and other employment taxes.
2.9. PHYSICAL EXAMINATION. The Employee shall submit to a physical
examination by a qualified physician on an annual basis which shall be paid for
by the Company and the results of such examination shall be made available to
the Company.
3. TERMINATION OF EMPLOYMENT.
3.1. DEATH OF THE EMPLOYEE. The Employee's employment under this
Agreement shall terminate immediately upon the Employee's death and the
Employee's estate (or her beneficiary as may be appropriate) shall be entitled
to receive:
(1) the balance of her accrued and unpaid Base Salary,
(2) unreimbursed expenses,
(3) unused accrued vacation time (up to a maximum of three
weeks) through the date of her death, and
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(4) any other benefits earned by the Employee and vested
(if applicable) as of the date of her death under any employee benefit plan
of MIIX Group or its affiliates in which the Employee participates.
3.2. DISABILITY OF EMPLOYEE. If the Employee, in the reasonable
opinion of the Company, is unable to perform her duties under this Agreement by
reason of incapacity, either physical or mental, as determined in accordance
with the MIIX Group of Companies Long Term Disability Group Benefit Plan (the
"LTD Plan"), or similar plan which may be in effect from time to time, the
Company shall have the right to terminate the Employee's employment upon written
notice to the Employee, whereupon such termination shall be effective as of the
date specified in such notice (the "Termination Date") and the Company shall
have no further obligations under this Agreement, except the obligation to pay
to the Employee:
(1) the balance of her accrued and unpaid Base Salary,
(2) unreimbursed expenses,
(3) unused, accrued vacation time (up to a maximum of three
weeks) through the Termination Date,
(4) any other applicable severance payments provided for in
Section 4 hereof, and
(5) any other benefits earned by the Employee and vested
(if applicable) as of the Termination Date under any employee benefit plan
of the Company or its affiliates in which the Employee participates.
If the Company determines not to terminate the Employee's employment in the
event of a disability as allowed under this Section 3.2, the Company shall
continue to pay Base Salary to the Employee for a period of up to ninety days,
and shall pay the difference between Base Salary and benefits paid to the
Employee under the LTD Plan for a period of up to six months thereafter, paid in
accordance with the Company's normal payroll practices, while the Employee is
not working. If the Employee, in the reasonable opinion of the Company, remains
disabled at the end of such nine month period, her employment shall be deemed
terminated and she shall receive the benefits provided for in this Section 3.2.
3.3. TERMINATION FOR CAUSE.
1. For purposes of this Agreement, "for cause" shall mean the
termination of the Employee's employment with the Company as a result of any of
the following:
(1) the willful engaging by the Employee in conduct which
is materially injurious to or contrary to the best interests of the
Company, monetarily or otherwise;
(2) the willful failure by the Employee to perform such
duties as may be delegated or assigned to the Employee by the Chief
Executive Officer or such other superior officer of MIIX Group;
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(3) the willful failure by the Employee to follow the
directives or instructions of the Chief Executive Officer or such other
superior officer of MIIX Group;
(4) the repeated and consistent failure of the Employee to
be present at work and devote her full time best efforts to the
performance of her duties under this Agreement, except as set forth above
in connection with the Employee's disability;
(5) gross negligence in the performance of her duties on
behalf of the Company;
(6) the Employee's conviction of, or plea of no contest to,
a felony or any crime involving moral turpitude; or
(7) the commission by the Employee of an act, or the
omission of an act, that would constitute a material breach of this
Agreement.
2. The Employee's employment under this Agreement shall terminate
immediately upon written notice from the Company that the Company is terminating
the Employee for cause. Upon the Company's termination of the Employee for
cause, the Company shall be required to pay to the Employee:
(1) the balance of her accrued and unpaid Base Salary,
(2) unreimbursed expenses,
(3) unused, accrued vacation time (up to a maximum of three
weeks) through the Termination Date, and
(4) any other benefits earned by the Employee and vested
(if applicable) as of the Termination Date under any employee benefit plan
of the Company or any affiliate in which the Employee participates.
3.4. TERMINATION WITHOUT CAUSE. The Company may terminate the
Employee's employment without cause under this Agreement at any time upon
written notice to the Employee specifying the date of termination. In the event
of a termination without cause, the Company shall make payments to the Employee
in accordance with Section 4 below.
3.5. TERMINATION FOLLOWING A CHANGE IN CONTROL.
1. In the event that the Company terminates the Employee's employment
during the six month period following a Change in Control (as hereinafter
defined), the Employee shall be entitled to receive:
(1) the accrued and unpaid balance of her Base Salary,
(2) Base Salary for the 24 month period following the
Termination Date, paid, at the option of the Company, in accordance with
the Company's normal payroll practices or in a lump sum,
(3) unreimbursed expenses,
(4) unused, accrued vacation time (up to a maximum of three
weeks) through the Termination Date,
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(5) any other benefits earned by the Employee and vested
(if applicable) as of the Termination Date under the terms of any employee
benefit plan of the Company or its affiliates in which the Employee
participates, and
(6) for the 24 month period following the Termination Date,
coverage for the Employee and her dependents (if applicable) under the
standard health and life benefits plans of the Company in which the
Employee participates.
The Company shall also be responsible for any tax penalty which may be
imposed upon the Employee in connection with the payments to be made under this
Section 3.5.
2. For purposes of this Agreement, "Change in Control" shall mean the
occurrence of any of the following events:
(1) the acquisition in one or more transactions by any "Person"
(as such term is used for purposes of Section 13(d) or Section 14(d) of the
Securities Exchange Act of 1934, as amended) but excluding, for this purpose,
MIIX Group or its affiliates or any employee benefit plan of MIIX Group or its
affiliates, of "Beneficial Ownership" (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) of thirty-five percent (35%) or
more of the combined voting power of MIIX Group's then outstanding voting
securities.
(2) the individuals who, as of the date hereof, constitute the
Board of Directors of MIIX Group (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that if the
election, or nomination for election by MIIX Group's shareholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall be considered as a member of the Incumbent Board, and
provided further that any reductions in the size of the Board that are
instituted voluntarily by the Incumbent Board shall not constitute a Change in
Control, and after any such reduction the "Incumbent Board" shall mean the Board
as so reduced;
(3) a merger or consolidation involving MIIX Group if the
shareholders of MIIX Group, immediately before such merger or consolidation, do
not own, directly or indirectly, immediately following such merger or
consolidation, more than sixty-five percent (65%) of the combined voting power
of the outstanding voting securities of the corporation resulting from such
merger or consolidation or a complete liquidation or dissolution of MIIX Group
or a sale or other disposition of all or substantially all of the assets of MIIX
Group; or
(4) the acceptance by the shareholders of MIIX Group of shares in
a share exchange if the shareholders of MIIX Group, immediately before such
share exchange, do not own, directly or indirectly, immediately following such
share exchange, more than sixty-five percent (65%) of the combined voting power
of the outstanding voting securities of the corporation resulting from such
share exchange.
3.6. TERMINATION BY THE EMPLOYEE. The Employee may terminate her
employment under this Agreement at any time upon not less than thirty days prior
written notice to the Company. The Company may, however, elect to accelerate the
date of
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termination. In the event of such a termination, the Company shall be required
to pay to the Employee:
(1) the balance of her accrued and unpaid Base Salary,
(2) unreimbursed expenses,
(3) unused, accrued vacation time (up to a maximum of three
weeks) through the Termination Date,
(4) any other benefits earned by the Employee and vested
(if applicable) as of the Termination Date under any employee benefit plan
of the Company or its affiliates in which the Employee participates.
4. SEVERANCE.
4.1. PAYMENTS BY THE COMPANY. In the event that the Company
terminates the Employee's employment without cause, or in the event that the
Company determines to terminate the Employee's employment under Section 3.2
hereof, the Employee shall be entitled to receive:
(1) the balance of her accrued and unpaid Base Salary,
(2) unreimbursed expenses,
(3) unused, accrued vacation time (up to a maximum of three
weeks) through the Termination Date,
(4) any other benefits earned by the Employee and vested
(if applicable) as of the Termination Date under any employee benefit plan
of the Company or any affiliate in which the Employee participates,
(5) for the 12 month period following the Termination Date,
coverage for the Employee and her dependents (if applicable) under the
standard health and life benefits plans of the Company in which the
Employee participates, and
(6) Base Salary, paid in accordance with the Company's
normal payroll practices, commencing on the Termination Date and ending on
the earlier of: (1) 12 months from the Termination Date or (2) the date on
which the Employee obtains full-time employment with any third party or as
an independent consultant, whichever is earlier.
Except during any period of disability as described in Section 3.2, the
Employee shall have a duty to undertake to secure new employment immediately
upon termination of employment with the Company. The Employee shall immediately
notify the Company in writing of such employment and any payments received by
the Employee pursuant to this Section 4.1 subsequent to the commencement of such
employment shall be promptly remitted to the Company. Notwithstanding the
foregoing, in the event that the Employee obtains full-time employment with any
third party or as an independent consultant at an annual amount lower than her
Base Salary at the Company on the date of her termination, the Company shall pay
to the Employee an amount equal to such difference from the date on which the
Employee obtains such full-time employment for a period not to exceed 12 months
from the Termination Date.
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4.2. RESIGNATIONS FROM POSITIONS. The Employee specifically agrees
that upon her termination of employment with the Company, whether voluntary or
involuntary, her position as an officer or as a member of the Board of Directors
of MIIX Group, MIIX Insurance Company, Underwriter or any affiliate shall cease
and this Agreement shall constitute notice of the Employee's resignation in such
regard.
5. NON-COMPETITION.
5.1. DEFINITION OF "COMPETITOR". For purposes of this Agreement,
"competitor" shall mean any company engaged in or about to be engaged in the
business of selling or marketing a product or service in the medical
professional liability insurance business which is similar to any product or
service sold or marketed or about to be sold or marketed by the Company or any
affiliate and the successors thereof, respectively.
5.2. TERM OF NON-COMPETITION. The Employee agrees that for so long
as she is employed by the Company and for a period of one year after the
termination thereof, whether voluntary or involuntary, she will not, directly or
indirectly, whether for compensation or not, own, manage, operate, join, control
or participate in, or be connected as a stockholder, officer, employee, partner,
creditor, guarantor, consultant, advisor or otherwise, with a competitor that is
engaged in or about to be engaged in business in any geographic area where the
Company or any affiliate are doing business. The foregoing shall not be
construed, however, as preventing the Employee from investing her assets in such
form or manner as will not require services on the part of the Employee in the
operations of the businesses in which such investments are made and provided
that any such business is publicly-owned and the interest of the Employee
therein is solely that of a passive investor owning not more than five (5%)
percent of the outstanding equity securities of any such business.
5.3. SOLICITATION OF COMPANY CLIENTS. For the period of one year
after the termination of the Employee's employment with the Company or any
affiliate, whether voluntary or involuntary, the Employee shall not, directly or
indirectly, call upon or solicit insurance or consulting business from any
person or entity who is or was a client of the Company or any affiliate at any
time within a period of twelve months immediately prior to the Termination Date,
or any broker, agent or consultant of such person or entity, without the express
written consent of the Company.
5.4. SOLICITATION OF COMPANY EMPLOYEES. For the period of one year
after the termination of the Employee's employment with the Company or any
affiliate, whether voluntary or involuntary, the Employee shall not, directly or
indirectly, hire, retain or engage as a director, officer, employee, agent,
consultant, advisor or in any other capacity any person or persons who are
employed by the Company or any affiliate or
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who were at any time within a period of six months immediately prior to the
Termination Date employed by the Company or any affiliate or otherwise interfere
with the relationship between such persons and the Company or its affiliates,
without the express written consent of the Company.
5.5. REMEDIES. The parties acknowledge and agree that the
Employee's services hereunder are special, unique, unusual and extraordinary,
giving them peculiar value, the loss of which cannot be reasonably or adequately
compensated solely by damages, and in the event that the Employee breaches any
provision of this Section 5, the Company shall be entitled to equitable relief
by way of injunction or otherwise. In the event that the period of time or
geographic area herein specified should be adjudged unreasonable in any court
proceeding, then the period of time shall be reduced by such number of months or
the geographic area shall be reduced by elimination of such portion thereof as
deemed unreasonable, so that this Agreement may be enforced during such period
of time and in such geographic area as is adjudged to be reasonable. In the
event that the Employee breaches any of the provisions of this Section 5, the
Company also shall be entitled to cease all payments and benefits under the
terms of this Agreement and to pursue all remedies which the Company might have
including, but not limited to, those contained in this Agreement.
6. CONFIDENTIALITY.
6.1. DEFINITION OF "CONFIDENTIAL INFORMATION". For the purposes of
this Agreement, "Confidential Information" shall mean all information about the
Company or any affiliate relating to any of their products or services or any
phase of their operations, including, without limitation, business plans and
strategies, trade secrets, marketing and distribution information, business
results, underwriting information and methods, identities of insureds and claims
defense and recovery methods and procedures not generally known through
legitimate means to any of its competitors, with which the Employee becomes
acquainted during the term of her employment.
6.2. CONFIDENTIAL TREATMENT. During the time of employment, or at
any time thereafter, the Employee shall not disclose or make available to any
person or entity any Confidential Information without the express prior written
authorization of the Company. All records, files, materials and Confidential
Information obtained by the Employee in the course of her employment with the
Company are confidential and proprietary and shall remain the exclusive property
of the Company or its affiliates, as the case may be. Upon the termination of
the Employee's employment with the Company or any affiliate, or at any time upon
the request of the Company, the Employee (or her heirs or personal
representatives, as applicable) shall deliver to the Company (1) all documents
and materials containing Confidential Information relating to the business or
affairs of the Company or its affiliates, or their customers or clients, and (2)
all other
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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.
6.3. REMEDIES. The parties acknowledge and agree that Confidential
Information is vital to the operations of the Company and its affiliates and
that the loss suffered by breach of any of the provisions of this Section 6
cannot be reasonably or adequately compensated for by damages, and in the event
that the Employee breaches this Section, the Company shall be entitled to
equitable relief by way of injunction or otherwise. In the event that the
Employee breaches any of the provisions of this Section 6, the Company also
shall be entitled to cease all payments and benefits under the terms of this
Agreement and shall be entitled to pursue all remedies which the Company might
have including, but not limited to, those contained in this Agreement.
7. SEVERABILITY. The terms of this Agreement and each Paragraph and
Section hereof shall be considered severable and the invalidity or
unenforceability of any part thereof shall not affect the validity or
enforceability of the remaining portions or provisions hereof.
8. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing and delivered by mail or overnight
delivery service, to her residence, in the case of the Employee or to its
principal office in the case of the Company.
9. ASSIGNMENT. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon its successors and
assigns. Neither this Agreement nor any rights or interests herein or created
hereby may be assigned or otherwise transferred voluntarily or involuntarily by
the Employee.
10. WAIVER. The waiver by the Company or the Employee of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach.
11. APPLICABLE LAW. This Agreement shall be interpreted and construed
under the laws of the State of New Jersey without reference to principles of
conflicts of laws.
12. JURISDICTION. Employee and the Company agree to submit to the
jurisdiction of the federal and state courts in New Jersey for purposes of the
enforcement of or any dispute concerning this Agreement and that any proceeding
to enforce or involving any dispute concerning this Agreement shall be brought
exclusively in the federal or state courts in New Jersey.
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13. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
or contemporaneous agreements with respect to the subject matter hereof. This
Agreement may not be changed, altered or amended except by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE MIIX GROUP, INCORPORATED
By:
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NEW JERSEY STATE MEDICAL
UNDERWRITERS, INC.
By:
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XXXXXXXXX X. XXXXXXXX
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