SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (this "Separation Agreement") is entered
into this 22nd day of November, 1999, 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 XXXXXX XXXXXXXX, including his successors,
assigns and estate (hereinafter referred to, collectively, as the "Executive").
The Company and the Executive 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 October 9, 1998 (the "Employment Agreement"), pursuant to which the
Company employees the Executive; and
WHEREAS, the Company has determined to terminate the employment of
the Executive under the Employment Agreement without cause; and
WHEREAS, the Executive has been and is entitled to certain payments,
benefits and distributions under the Employment Agreement as well as certain
other agreements and plans (as hereinafter defined) to which the Parties are
party and which the Parties hereby wish to clarify and set forth;
NOW THEREFORE, in consideration of the promises and mutual 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: Pursuant to Section 5.4 of the Employment
Agreement, the Executive's salaried employment with the Company
together with all accompanying benefits of employment shall be
deemed terminated, without cause, on November 15, 1999 (the
"Termination Date"). The Executive shall perform no further services
for and shall have no authority to act on behalf of the Company
after the Termination Date.
The Parties acknowledge and agree that the Executive is entitled to
various benefits upon termination of employment under the various
benefit plans established by the Company as well as under certain
agreements to which the Executive and the Company are a party which
are identified as Schedule 1 annexed hereto and a part hereof. The
Parties hereby restate those benefits together with any
modifications thereto which the Parties have mutually agreed upon.
It is agreed that the Executive 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 Executive after the Termination Date.
2. Separation Payments: Subject to the Executive's acceptance and
compliance with all of the terms and conditions set forth in this
Separation Agreement, the Company shall pay to the Executive the
following payments:
(i) the amount of $28,148.46, representing the accrued but unused
vacation time to which the Executive is entitled, payable to
the Company in a lump sum as soon
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as practicable after the execution hereof, less applicable
deductions, including, without limitation, federal and state
withholding;
(ii) the amount of $820,307.92, representing Base Salary payable
from the Termination Date through October 8, 2001, of which
$495,307.92 shall be paid by the Company as soon as
practicable after the execution hereof and $325,000 shall be
paid as soon as practicable after January 1, 2001, less
applicable deductions, including, without limitation, federal
and state withholding; and
(iii) the amount of $250,000, representing 1999 bonus compensation
through the Termination Date pursuant to the Company's Cash
Incentive Program, which shall be paid in a lump sum as soon
as practicable after the execution hereof, less applicable
deductions, including, without limitation, federal and state
withholding.
3. Benefits: In addition to the foregoing payments to be made by the
Company to the Executive, the Executive shall be entitled to the
following:
(i) continuation of insurance coverage for the Executive and his
dependents, to the extent applicable, under the Company's
standard health, life and disability plans and programs as now
or as may be in effect for a period of eighteen (18) months
following the Termination Date;
(ii) twenty-five thousand (25,000) shares of The Xxxxxxx.xxx common
stock purchased by the Company for the benefit of the
Executive under the Company's Deferred Compensation Plan at a
purchase price of $250,000, which shall be transferred to the
Executive as soon as practicable after January 1, 2000;
(iii) the value of amounts held for the benefit of the Executive
under the Company's Deferred Compensation Plan (which at the
Termination Date is equal to $818,446 and shall be increased
or decreased in correlation with the performance of MIIX Group
common stock), on March 20, 2000 and payable in a lump sum in
cash on such date, less applicable deductions, including,
without limitation, federal and state withholding;
(iv) the termination by the Company of the Collateral Agreement,
dated September 12, 1996, made by the Executive for the
benefit of the Company with respect to certain rights of the
Executive under the Phoenix Home Life policy issued in the
Executive's name pursuant to the Supplemental Executive
Insurance Plan, which shall be effected as soon as practicable
after January 1, 2000;
(v) the amounts representing the value of the Executive's vested
benefits under the Company's Defined Benefit Plan which shall
be paid out in accordance with such Plan;
(vi) the amounts representing vested benefits under the Company's
401K Plan which shall be directed to such account or accounts
as shall be designated by the Executive;
(vii) options to purchase 43,750 shares of MIIX Group common stock,
$.01 par value per share, which, on the Termination Date, are
fully vested, shall be deemed exercised on March 20, 2000 and
the Company shall redeem the share issuable pursuant to such
exercise by paying to the Executive a price per share equal to
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the difference of the market price of such shares over the
exercise price on March 20, 200, less applicable deductions,
including, without limitation, federal and state withholding,
and the balance of the non-vested options granted by the
Company to the Executive pursuant to the 1998 Long Term
Incentive Equity Plan (i.e., options to purchase 131, 250
shares) shall be forfeited by the Executive and shall be
deemed void and of no further effect;
(viii) a certificate representing 6,692 shares of MIIX Group common
stock, $.01 par value per share, which, on the Termination
Date, are fully vested, shall be issued to the Executive as
soon as practicable after the execution hereof, and the
balance of the non-vested shares granted by the Company to the
Executive pursuant to the 1998 Long Term Incentive Equity Plan
(i.e., 20,078 shares) shall be forfeited by the Executive, who
shall have no further right or interest therein; and
(ix) title to the 1999 Lexus LS400 automobile purchased for the
Executive's use shall be transferred to the Executive as soon
as practicable after the execution hereof.
The Executive acknowledges and agrees that in consideration of
the foregoing payments and other benefits, except as provided
in the foregoing, the Executive shall have no further rights
or entitlements under any agreement or benefit plan of the
Company including, but not limited to, those agreements and
plans identified on Schedule 1 hereto.
4. Stock Purchase and Loan Agreement: Pursuant to the terms of
Paragraph 1.9 of the Stock Purchase and Loan Agreement, dated June
22, 1999 (the "Stock Purchase Agreement"), between the Company and
the Executive, the Executive's obligation to pay the promissory note
executed in connection with the stock purchase which is the subject
of such Stock Purchase Agreement is hereby extended, to be paid,
together with accrued interest thereon, at the Executive's option,
on or prior to June 22, 2004; provided however, that all other terms
of the Stock Purchase Agreement and the promissory note executed in
connection therewith including, without limitation, the provision
relating to collateral contained in paragraph 3, shall remain in
full force and effect. Any and all dividends which may be declared
with respect to the stock which is the subject of the Stock Purchase
Agreement shall be payable to the Executive upon declaration and
payment thereof.
5. Restriction on Securities: The Executive acknowledges that certain
or all of the securities of the Company which he may currently own
or which he may be entitled to receive or purchase pursuant to the
benefits set forth herein are subject to restrictions on the
transferability thereof as a result of applicable law and the
agreements pursuant to which such securities were acquired.
6. Resignations from Boards of Directors and Officerships: The
Executive agrees, effective with the Termination Date, that he
hereby resigns from all of his positions as a member of the Board of
Directors and as an officer of the Company and of any of its
subsidiaries and/or affiliates and that the Executive shall execute
any and all further documentation reasonably requested by the
Company to evidence such resignations.
7. Release by the Executive: Except as otherwise expressly provided in
this Separation Agreement, the Executive 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 Separation
Agreement, limited to, (i) those relating to any obligation or
liability of the Company to the Executive under the Employment
Agreement or the agreements and
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plans identified on Schedule 1 hereto; (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 Employment Retirement
Income Security Act, the Conscientious Employee Protection Act and
the New Jersey Law Against Discrimination. The Executive gives up
any claim to reinstatement and will not apply for re-employment with
the Company.
8. Release by the Company: Except as otherwise expressly provided in
this Separation Agreement, the Company hereby releases and forever
discharges the Executive from any and all causes of action, claims
or demands, known to it, up to the Termination Date, limited to,
those relating to any obligation or liability of the Executive to
the Company under the Employment Agreement or the agreements and
plans identified on Schedule 1 hereto.
9. Complete Consideration: The Executive acknowledges and agrees that
the above-described consideration is the total consideration which
the Executive shall receive from the Company and that he is not
entitled to any additional payments or consideration of any kind
whatsoever under any agreement with the Company or the Company's
policies or benefit plans.
10. Confidentiality/Return of Confidential Information: The Executive
acknowledges that he is bound by the confidentiality provisions
contained in Section 6 of the Employment Agreement, which provide,
among other things, that the Executive shall not disclose or use any
of the Company's trade secrets, data, know-how, designs, formulas,
developmental or experimental work, claims, defenses and recovery
methods and procedures and broker and agent relationships, computer
programs, proprietary information bases and systems, databases,
customer lists, business plans, financial information of or about
the Company, in each case, whether such information is of a
technical or commercial or other nature. The Executive further
acknowledges and agrees that he is bound by the provisions of
Section 7 of the Employment Agreement pursuant to which the
Executive immediately shall deliver to the Company 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 that are in
the Executive's possession or under the Executive's control.
11. Non-Competition by Executive: The Executive acknowledges and agrees
that he is bound by the provisions of Section 8 of the Employment
Agreement pursuant to which, for a period of one (1) year from and
after the Termination Date, he shall 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, advisor or otherwise, with a
competitor (as defined in the Employment Agreement), provided,
however, that the Executive shall not be prevented from investing
his assets in such form or manner as will not require services on
the part of the Executive in the operations of the businesses in
which such investments are made and provided any such business is
publicly owned and the interest of the Executive therein is solely
that of an investor owning not more than five (5%) percent of the
outstanding equity securities of any such business. The Executive
further acknowledges and agrees that, for a period of six (6) months
from and after the Termination Date, the Executive shall not offer
employment or otherwise solicit as a director, officer, employee,
agent or in any other
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capacity any person or persons who are employed by the Company or
who were at any time (within six (6) months prior to the Termination
Date) employed by the Company or otherwise interfere with the
relationship of the Company with such persons or of the Company's
vendors or customers, or request or cause any employees, vendors or
customers of the Company to alter, cancel or terminate any business
relationship between any such parties and the Executive further
agrees not to make any disparaging remarks or negative comments
about the Company, its business practices or its personnel matters.
12. Reasonableness of Terms/Injunctive Relief: Each Party hereto
acknowledges and agrees that the provisions set forth herein are
reasonable and properly required for the protection of both Parties.
Each Party further acknowledges that any breach of these provisions
would expose the other Party to substantial and irreparable loss,
and either Party may enforce such provisions as well as this
Separation Agreement by injunctive or other equitable relief as
necessary.
12. Executive's Breach of this Separation Agreement: The Executive
agrees that in the event of a violation of any provision of this
Separation Agreement by the Executive, in addition to any and all
other equitable and legal remedies which may be available to it, the
Company shall be entitled to withhold any payment or other benefits
to be made or provided by it to the Executive under this Separation
Agreement and/or shall be entitled to recover the payments already
made to the Executive in accordance with the terms hereof, together
with any and all attorneys' fees incurred in connection therewith.
The Executive acknowledges that the Company's remedies are a
reasonable measure of compensation for breach of this Separation
Agreement, and are not punitive in nature.
13. No Admission: Each Party acknowledges that nothing contained in this
Separation Agreement is intended to constitute an admission on the
part of either Party of a violation of any law or of any liability
whatsoever. Accordingly, this Separation Agreement shall not be
admissible as evidence in any proceeding as an admission, but only
in a proceeding to enforce its terms.
14. Further Actions: Each of the Parties shall use such Party's
reasonable best efforts to take such actions as may be necessary or
reasonably requested by the other Party hereto to carry out and
consummate the transactions contemplated by this Separation
Agreement.
15. Governing Law: This Separation 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.
Except in the event of a breach or threat of breach of either of
Sections 10 or 11 hereof, any controversy or claim arising out of or
relating, directly or indirectly, to this Separation Agreement or
the breach thereof shall be finally and conclusively settled by
arbitration in New Jersey in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
force, and judgment upon the award by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
16. Severability: Should any provisions of this Separation 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 Separation
Agreement.
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17. Entire Agreement: This Separation Agreement contains the complete
understanding between the Company and Executive, and no other
promises or agreements shall be binding unless in writing and signed
by such parties.
18. Counterparts: This Separation Agreement may be executed in
counterparts, each of which shall be deemed to constitute an
original and all of which taken together shall constitute one and
the same instrument.
By signing below, the Company and the Executive acknowledge and agree that they
have carefully read and understand the terms of this Separation Agreement, enter
into this Separation 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 Separation
Agreement as of the date indicated opposite their respective names.
Date:
11/22/99 /s/ Xxxxxx Xxxxxxxx
---------------------- ------------------------------------------
Xxxxxx Xxxxxxxx
THE MIIX GROUP, INCORPORATED
Date:
11/30/99 By: /s/ Xxxxxxx Xxxxxxx
---------------------- --------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Acting CEO
NEW JERSEY STATE MEDICAL UNDER-WRITERS, INC.
Date:
11/30/99 By: Xxxxxxx Xxxxxxx
---------------------- --------------------------------------
Name: Executive Vice-President
Title:
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Schedule 1
PLANS AND AGREEMENTS
1. New Jersey State Medical Underwriters, Inc. Defined Benefit Plan.
2. New Jersey State Medical Underwriters, Inc. 401K Plan
3. New Jersey State Medical Underwriters, Inc. Supplemental Executive
Insurance Plan Restricted Split Dollar Life Insurance Agreement.
and
Limited Payment Whole Life Policy issued by Phoenix Home Life Mutual
Insurance Company (policy No. 2 693 161)
4. New Jersey State Medical Underwriters, Inc. Deferred Compensation
Plan
5. The MIIX Group, Incorporated Cash Incentive Plan
6. The MIIX Group, Incorporated 1998 Long Term Incentive Equity Plan
