Advisor Agreement - Private Business Inc. and Thomas Black
ADVISOR AGREEMENT
1. PARTIES. This Advisor Agreement ("AGREEMENT") covers all
understandings between THOMAS BLACK (hereinafter "EXECUTIVE") and PRIVATE
BUSINESS, INC. (hereinafter "CORPORATION") relating to Executive's resignation
as the Corporation's Chief Executive Officer and transition to status as an
employed Advisor to the Corporation. Except for continuing obligations under the
Employment Agreement (as defined below), and the Stock Option Agreements
referenced in Section 5 below, no other expressed, implied, written or oral
agreement between Executive and the Corporation relating to Executive's
transition from Chief Executive Officer to Advisor will have any effect unless
it is in writing and is signed and dated by both parties after the date of this
Agreement.
2. TRANSITION DATE. Executive's resignation from the office of Chief
Executive Officer of the Corporation was effective on February 1, 2003 (the
"TRANSITION DATE"). After that date, except for any earned but unpaid
compensation for his services as an employee prior to the Transition Date
(including, but not limited to, salary), the only payments, benefits or other
things of value that Executive will be entitled to receive directly from the
Corporation with respect to his employment by the Corporation are those set
forth in this Agreement.
3. EFFECT ON EMPLOYMENT AGREEMENT. Executive and Corporation
acknowledge and agree that both parties are subject to a certain Executive
Employment Agreement effective February 1, 2001 (the "EMPLOYMENT AGREEMENT") and
that such Employment Agreement shall terminate effective February 1, 2003,
except that the provisions of the Employment Agreement expressly intended to
survive the termination shall survive and shall be enforceable as written.
4. CONTINUING SERVICE AS ADVISOR. Executive agrees to serve as an
advisor to the Corporation, devoting such time, skills, and attention as may be
reasonably requested by the Corporation's Chief Executive Officer or at the
direction or the Corporation's Board of Directors, from the Transition Date to
February 1, 2005 (the "ADVISORY SERVICES PERIOD").
5. CONTINUING COMPENSATION. In exchange for Executive's continued
services to the Corporation as an Advisor pursuant to Section 4 above, the
Corporation agrees to pay to Executive during the Advisory Services Period at
the annual rate of Two Hundred Fifty Thousand Dollars ($250,000), less statutory
withholdings and deductions payable in accordance with the then current payroll
policies of the Corporation.
6. HEALTHCARE INSURANCE AND EMPLOYEE BENEFITS. As an employee of the
Corporation, Executive shall be eligible during the Advisory Services Period to
continue participation in the Corporation's group health plan and any other
standard employee benefits plans on terms provided to the Corporation's
rank-and-file employees. However, the Company shall pay for health premiums for
Executive's health insurance under such group benefit plans. Nothing within this
Section will, in any way, alter Executive's rights to health insurance or
benefits granted to Executive for Executive's service as a board member of the
Company.
1
<PAGE>
7. MUTUAL WAIVER AND RELEASE. For and in consideration of the promises
contained in this Agreement, each party hereby voluntarily, willingly,
knowingly, irrevocably and unconditionally waives, releases, and forever
discharges the other party from all rights, claims, and liability, whether or
not they are presently known to exist, that each party has, had, or may have
against the other party arising out of or relating in any manner to Executive's
employment with the Corporation through the Transition Date, but subject to the
exceptions set forth in Section 8. The rights and claims that Executive waives,
releases, and discharges include, to every extent allowed by law, but are not
limited to, those arising under the Age Discrimination in Employment Act of
1967, the Older Workers' Benefit Protection Act, the Civil Rights Acts of 1866,
1871, 1964 and 1991, the Immigration Reform and Control Act of 1986, the
Occupational Safety and Health Act, the Americans with Disabilities Act, the
Equal Pay Act of 1963, the Executive Retirement Income Security Act, the Family
and Medical Leave Act of 1993, the Comprehensive Omnibus Budget Reconciliation
Act and under all other federal, state and local laws, regulations and
ordinances, statutory and common law contract, tort, and/or wrongful discharge
claims arising out of or relating in any manner to Executive's employment with
the Corporation through the Transition Date but subject to the exceptions set
forth in Section 8. Similarly, subject to the exceptions set forth in Section 8,
Corporation waives, releases, and discharges all rights and claims Corporation
has, had, or may have under any federal, state and local laws, regulations and
ordinances, including but not limited to statutory and common law contract or
tort claims arising out of or relating in any manner to Executive's employment
with the Corporation through the Transition Date.
8. EXCEPTIONS TO MUTUAL WAIVER AND RELEASE. The foregoing language in
Section 7 notwithstanding, the Corporation and Executive acknowledge that this
section does not apply to any rights, claims or liability either party has, had,
or may have against the other party arising out of or relating to: (a) a
material breach of this Agreement; (b) any disputes over the administration of
benefits or any claims for benefits under the Corporation's employee benefit
plans or various insurance programs for so long as Executive retains coverage
under such plans or programs; or (c) any claims under the Employment Agreement
for provisions intended to survive the termination of the Employment.
9. CONSTRUCTION. The parties agree that for the purposes of this
Agreement all references to PRIVATE BUSINESS, INC. or the Corporation should be
understood to mean not only PRIVATE BUSINESS, INC., itself, but also all current
subsidiary companies and affiliated companies of PRIVATE BUSINESS, INC., as well
as all current, past and future officials, employees, agents, representatives,
officers, directors, attorneys, accountants, shareholders, successors and
assigns of PRIVATE BUSINESS, INC. and its current parent companies, subsidiary
companies and affiliated companies, and all persons acting by, through, under or
in concert with any of them. For purposes of this Agreement, "affiliate" shall
mean any person or entity directly or indirectly controlling, controlled by or
under common control with another person or entity from time to time.
10. NO ADMISSION. Each party acknowledges that this document does not
constitute an admission by the other party of any unlawful act or of any
violation of any statute, regulation, contract or other provision of statutory,
regulatory or common law.
2
<PAGE>
11. CONFIDENTIALITY. Corporation and Executive agree to keep all
matters concerning this Agreement absolutely confidential and agree not to
disclose, verbally or otherwise, either the existence or terms of this Agreement
to anyone, including but not limited to past, present or future employees of the
Corporation, except that Executive may disclose the existence of and the terms
and conditions of this Agreement to his spouse, if any, and/or his attorney,
and/or his accountant, and/or his tax advisor (to the extent necessary to
prepare his tax returns), provided that Executive makes each such person aware
of the confidentiality provisions of this paragraph and that each such person to
whom such information is disclosed has previously agreed to keep the existence,
terms and conditions of this Agreement confidential, and the Corporation may
disclose this Agreement, or provisions thereof, pursuant to applicable
securities laws.
12. INTERPRETATION; ENFORCEABILITY. The parties agree that if any
clause or provision herein is deemed by a court of competent jurisdiction to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining parts, terms or provisions shall not be affected thereby, and the
remainder of this Agreement shall remain in full force and effect to the fullest
extent possible.
13. CONTEMPLATION PERIOD. Executive acknowledges that on or about March
7, 2003, the Corporation gave Executive an unsigned copy of this Agreement and
informed Executive that he had 45 days from the date of receipt to consider it
before signing.
14. RIGHT OF REVOCATION. Executive also acknowledges that the
Corporation has informed Executive that for a period of seven (7) days after the
date upon which Executive signs this Agreement, Executive may revoke it in
writing. Executive further acknowledges understanding that if Executive revokes
this Agreement, Executive will lose all benefits of this Agreement.
15. BINDING EFFECT; SUCCESSORS AND ASSIGNS. Executive, by signature
below, acknowledges that he has carefully read and considered the contents of
this Agreement, and that he fully understands all of its provisions and that he
is voluntarily, willingly and knowingly entering into this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, estates, successors and assigns, their affiliates, employees,
directors, officers, shareholders and agents.
16. COOPERATION; MUTUAL RESPECT; NO DISPARAGEMENT. The parties agree
that certain matters, which Executive was involved in during his period of
service to the Corporation, may necessitate Executive's cooperation in the
future. Executive agrees to cooperate with all reasonable requests of the
Corporation. Each party agrees to mutually respect the other and to refrain from
making any disparaging comments about the other or disparaging the business of
the other from the date of this Agreement and thereafter.
3
<PAGE>
EXECUTIVE ACKNOWLEDGES THAT HE HAS BEEN ADVISED TO CONSULT AN ATTORNEY WITH
RESPECT TO THIS AGREEMENT BEFORE SIGNING THIS AGREEMENT.
/s/ THOMAS BLACK
-----------------------------------
THOMAS BLACK
March 28, 2003
4
<PAGE>
Personally appeared Thomas Black before me this 28 day of March, 2003.
/s/ Gina Rudolph
-----------------------------------
NOTARY PUBLIC
My Commission Expires: 10/25/2003
-------------
PRIVATE BUSINESS, INC.
By: /s/ Michael Berman
--------------------------------
Title: General Counsel
-----------------------------
March 28, 2003
5