Executive Employment Agreement - Private Business Inc. and Kevin M. McNamara
EXECUTIVE EMPLOYMENT AGREEMENT OF
KEVIN M. MCNAMARA
This Executive Employment Agreement ("AGREEMENT") is entered into between
PRIVATE BUSINESS, INC., a Tennessee corporation ("COMPANY"), and KEVIN M.
MCNAMARA, a resident of Brentwood, Tennessee ("EXECUTIVE"), executed and
effective October 31, 1999. The Company and the Executive are sometimes referred
to herein as the "PARTIES."
1. Introduction. The Company desires to employ Executive and the Executive
desires to be employed by the Company. Accordingly, the Company and the
Executive intend by this Agreement to specify the terms and conditions of the
Executive's employment relationship with the Company.
2. Employment. The Company hereby employs the Executive and the Executive
hereby accepts employment with the Company upon terms and conditions set forth
herein.
3. Duties and Responsibilities.
3.1 Extent of Service. The Executive shall, during the term of this
Agreement, devote such of his entire time, attention, energies and business
efforts to his duties as an executive of the Company as are reasonably necessary
to carry out his duties specified in Paragraph 3.2 below. The Executive shall
not, during the term of this Agreement, engage in any other business activity
(whether or not such business activity is pursued for gain, profit or other
pecuniary advantage) if such business activity would impair the Executive's
ability to carry out his duties hereunder. This Paragraph 3.1, however, shall
not be construed to prevent the Executive from investing his personal assets as
a passive investor.
3.2 Position and Duties. Subject to the power of the Board of Directors
of the Company to elect and remove officers and the power of the stockholders to
remove directors, the Executive shall serve the Company as Chief Executive
Officer and be appointed to the Board of Directors by the current members of the
Board of Directors; and shall perform, faithfully and diligently, the services
and functions relating to such office or otherwise reasonably incident to such
office as may be designated from time to time by the Board of Directors of the
Company or its designee(s); provided that all such services and functions shall
be reasonable and within the Executive's area of expertise, and provided further
that the Executive shall be physically capable of performing the same.
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3.3 Place of Employment. During the term of this Agreement, the Company
shall maintain its principal executive offices in the Nashville, Tennessee area,
and the Executive's primary place of employment shall be at such principal
executive offices. During the term of this Agreement, the Company will provide
the Executive with a private office and other customary staff support services
commensurate with the services and functions to be performed by him hereunder.
4. Salary and Other Benefits. Subject to the terms and conditions of this
Agreement:
4.1 Salary. As compensation for his services under and during the term of
his employment under this Agreement, the Executive shall be paid an annual
salary of not less than Two Hundred Ten Thousand Dollars ($210,000), payable in
accordance with the then current payroll policies of the Company. Such salary
shall be subject to increase by the Board of Directors of the Company (or the
appropriate committee thereof) from time to time. The annual salary payable from
time to time by the Company to the Executive pursuant to this Paragraph 4.1 is
herein sometimes referred to as his "BASE SALARY."
4.2 Incentive Bonus Eligibility. Beginning with calendar year 2000, the
Executive shall be eligible to be paid an annual incentive cash bonus of up to
one hundred percent (100%) of his Base Salary subject to performance criteria
for the Company and Executive established from time to time by the Board of
Directors, or its designee(s), and Executive.
4.3 Stock Option Grants.
(a) Executive shall be granted options to acquire Five Hundred
Thousand (500,000) shares of the Company's common stock at an exercise
price equal to the closing trading price of such stock on October 29,
1999. Such grant shall be made pursuant to an Incentive Stock Option
Agreement between the Company and Executive to the extent Executive is
eligible for incentive options under applicable tax laws and, with
respect to any excess, a Non-Qualified Stock Option Agreement between the
Company and the Executive. Such agreement(s) will provide for vesting of
such options over three (3) years at the rate of 1/36th per month. In all
events such options shall be subject to the terms and conditions of the
Company's 1999 Amended and Restated Stock Option Plan, as the same may be
amended from time to time.
(b) Executive shall also be granted, effective the effective date
of this Agreement reflected above, options to acquire an aggregate of
Five Hundred Thousand (500,000) shares of the Company's common stock at
the following exercise prices:
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Number of Shares Exercise Price Per Share
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250,000 $ 8.00
250,000 $12.00
Such grants shall be made pursuant to an Incentive Stock Option Agreement
between the Company and Executive to the extent Executive is eligible for
incentive options under applicable tax laws and, with respect to any excess, a
Non-Qualified Stock Option Agreement between the Company and Executive. Such
agreement(s) will provide for vesting of such options over three (3) years at
the rate of 1/36th per month. In all events such options shall be subject to the
terms and conditions of the Company's 1999 Amended and Restated Stock Option
Plan, as the same may be amended from time to time.
4.4 Other Benefits. As long as the Executive is employed by the
Company, the Executive shall be entitled to receive the following benefits in
addition to his Base Salary:
(a) The Executive shall have the right to participate in all group
benefit plans of the Company in accordance with the Company's regular
practices with respect to its senior officers.
(b) The Executive shall be entitled to reimbursement from the
Company for reasonable out-of-pocket expenses incurred by him in the
course of the performance of his duties hereunder, subject to compliance
with the Company's standard expense policies and procedures.
(c) The Executive shall be entitled to such vacation, holidays and
other paid or unpaid leaves of absence as are consistent with the
Company's other senior officers.
4.5 Initial Payment. Within five (5) days of Executive's execution of
this Agreement, the Company shall pay Executive an initial payment, in addition
to any other payments under this Agreement, of Fifty Thousand Dollars ($50,000),
subject to the Company's standard payroll practices and withholding taxes. In
the event Executive resigns within ninety (90) days of the date hereof, he shall
refund the initial payment to the Company in full within five (5) days.
5. Term. The term of this Agreement shall be for an initial period of two
(2) years and two months ending on December 31, 2001, and shall thereafter
automatically be extended for an additional period of one (1) year on a yearly
basis, unless on or before October 1 of any subsequent year, either the
Executive or the Company gives the other party notice that the term of this
Agreement will not be so extended, in which case the term of this Agreement will
end on the end of the year designated in the notice. Notwithstanding
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the foregoing, the indemnification provisions of this Agreement contained in
Paragraph 10 shall survive until the expiration of the statute of limitations
for assessment of any excise tax under Section 4999 of the Code with regard to
an Excess Parachute Payment on account of the Change of Control.
6. Termination and Resignation. The Company shall have the right to
terminate the Executive's employment hereunder at any time and for any reason,
and upon any such termination the Executive shall be entitled to receive from
the Company prompt payment of the amount determined pursuant to the applicable
subparagraph of Paragraph 7 below. The Executive shall have the right to
terminate his employment hereunder at any time by resignation, and he shall
thereupon be entitled to receive from the Company prompt payment of the amount
determined pursuant to the applicable subparagraph of Paragraph 7 below.
7. Payments Upon Termination and Resignation.
7.1 Pro Rata Payments Upon Termination for Cause, Resignation Prior to
Change in Control, Death or Disability. If (a) the Company at any time
terminates the Executive's employment for Cause (as defined below), or (b) prior
to the occurrence of a Change In Control (as defined below) of the Company, the
Executive voluntarily resigns for any reason other than because of an uncured
material breach by the Company of any term of this Agreement, then in each case
the Executive shall be entitled to receive only his Base Salary on a pro rata
basis to the date of termination plus any amounts due Executive through the date
of termination in accordance with Paragraph 4.4. If the Executive during the
term of this Agreement dies or becomes disabled (being the inability of the
Executive to perform his normal employment duties for six (6) months during any
twelve (12) month period because of either physical or mental incapacity), the
Executive or his estate shall be entitled to receive any amounts due Executive
pursuant to Section 4.4 and to receive his Base Salary plus Bonus on a pro rata
basis to the date of termination or resignation. For purposes of this Paragraph
7.1, "pro rata" shall mean the product of the Executive's annual Base Salary and
Bonus that would have been payable had the Executive's employment not terminated
multiplied by a fraction the denominator of which is 365 and the numerator of
which is the number of days during the calendar year that have passed through
the date of the termination of the Executive's employment.
7.2 Base Salary and Average Bonus Payment Upon Termination Prior to
Initial Change in Control Event or Upon Resignation Based on Material Breach
Prior to Change in Control. If (a) prior to the occurrence of an Initial Change
in Control Event (as defined below), the Company terminates the Executive's
employment because of a Discharge Event (as defined below), or if (b) prior to
the occurrence of a Change in Control of the Company, the Executive resigns
because of the uncured material breach by the Company of any term of this
Agreement, then in each case the Executive shall be entitled to receive
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a lump sum payment equal to his Base Salary and Average Bonus (as defined
below). If prior to the occurrence of an Initial Change in Control Event the
Company terminates the Executive's employment without Cause and without a
Discharge Event, then the Executive shall be entitled to receive the greater of
(a) a lump sum payment equal to his Base Salary and Average Bonus, or (b) his
Base Salary and Bonus as provided in Paragraph 4.2 for the remainder of the
unexpired term of this Agreement.
7.3 Multiple Base Salary Payment Upon Termination After Initial Change
of Control Event or Upon Termination or Resignation After a Change in Control.
If after the occurrence of an Initial Change of Control Event of the Company,
the Company terminates the Executive's employment hereunder (a) because of a
Discharge Event, or (b) without Cause and without any Discharge Event, then in
either case the Company will pay to the Executive a lump sum termination payment
equal to two (2) times the sum of his Base Salary and his Average Bonus (as
defined below) (collectively, the "LUMP SUM PAYMENT"). If after the occurrence
of a Change in Control of the Company, (a) the Company terminates the
Executive's employment hereunder for any reason other than for Cause (other than
his death or disability), or (b) the Executive voluntarily resigns his
employment hereunder for any reason (other than his death or disability), then
in each case the Company will pay to the Executive the Lump Sum Payment.
7.4 Certain Definitions. The following terms not defined elsewhere in
this Agreement shall have the following definitions:
(a) "AVERAGE BONUS" shall mean that result obtained by dividing
the sum of the Bonuses, if any, actually paid to the Executive pursuant
to Paragraph 4.2 above in respect of the two (2) years immediately
preceding the year in which a Change in Control of the Company occurs by
the number of years during such two-year period in which the Executive
was entitled to receive a bonus pursuant to Paragraph 4.2 above;
provided, however, that with respect to a termination of employment that
occurs prior to 2001, the Average Bonus of the Executive shall be the
greater of (i) fifty percent (50%) of the Base Salary of the Executive,
or (ii) the Bonus Executive actually received with respect to calendar
year 2000.
(b) Termination by the Company of the Executive's employment for
"CAUSE" shall mean termination upon the willful misappropriation of funds
or properties of the Company or the willful contravention of the
standards referred to in the last sentence of Paragraph 11 below. For
purposes of this definition, no act, or failure to act, on the
Executive's part shall be considered "willful" unless done, or omitted to
be done, by the Executive not in good faith and without reasonable belief
that the Executive's action or omission was in the best interest of the
Company. Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for Cause unless and until there shall have been
delivered to the
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Executive a copy of a resolution, duly adopted by the affirmative vote of
not less than three-quarters (3/4) of the entire membership of the Board
of Directors of the Company at a meeting of the Board duly called and
held (after reasonable notice to the Executive and an opportunity for the
Executive, together with his counsel, to be heard before the Board)
finding that in the good faith opinion of the Board the Executive was
guilty of the conduct set forth above and specifying the particulars
thereof in detail.
(c) A "CHANGE IN CONTROL" shall be conclusively deemed to have
occurred if (and only if) any of the following shall have taken place:
(i) a change in control is reported by the Company in response to either
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), or Item 1
of Form 8-K promulgated under the Exchange Act; (ii) any person (as such
term is used in Section 13(d) and 14(d)(2) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly, of securities of the Company representing
forty percent (40%) or more of the combined voting power of the Company's
then outstanding securities; or (iii) following the election or removal
of directors, a majority of the Board consists of individuals who were
not members of the Board two (2) years before such election or removal,
unless the election of each director who was not a director at the
beginning of such two-year period has been approved in advance by
directors representing at least a majority of the directors then in
office who were directors at the beginning of the two-year period.
(d) The "CODE" shall refer to the Internal Revenue of 1986, as
amended.
(e) A "DISCHARGE EVENT" shall have occurred if the Executive shall
have received a copy of a resolution duly adopted by the affirmative vote
of a majority of the members of the Compensation Committee of the Board
of Directors of the Company finding that, upon the recommendation of and
for the reasons cited by the Chairman of the Company, the Executive is no
longer discharging his duties in a manner consistent with the effective
administration of the affairs of the Company and hence the continued
employment of the Executive is no longer in the best interest of the
Company.
(f) An "INITIAL CHANGE IN CONTROL EVENT" shall be conclusively
deemed to have occurred when any individual, group, partnership,
corporation, trust or other entity ("PERSON") initiates a course of
action or conduct that, in the good faith judgment of the Board of
Directors of the Company, might reasonably be expected to lead to a
Change in Control of the Company. For example and without limiting the
scope of the foregoing, an Initial Change in Control Event would include
the public announcement or other disclosure by a Person of its intention
(i) to acquire
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by private or open market purchase, tender offer, exchange offer, or
otherwise forty percent (40%) or more of the combined voting power of the
Company's outstanding securities, or (ii) to solicit proxies or consents
for the removal of at least three (3) incumbent directors or the election
of at least three (3) persons to serve as directors of the Company in
opposition to nominees proposed by the Board of Directors of the Company.
(g) A "MATERIAL BREACH" by the Company of this Agreement shall
include, without limitation, the removal of the Executive without his
prior written consent from the position of Chief Executive Officer and/or
a Director (except in the event of termination for Cause or a Discharge
Event).
8. Acceleration of Options. Contemporaneously with the occurrence of a
Change in Control of the Company, all outstanding options previously granted to
the Executive under any then existing Company stock option, stock appreciation
or other employee incentive plan that are not otherwise exercisable by the
Executive at the time the Change in Control of the Company occurs will
immediately vest. In the event of termination of employment by the Company for
any reason other than for Cause, either before or after a Change in Control,
Executive's vested stock options shall remain exercisable for the duration of
the option term specified in the applicable option agreement(s) and subject to
the terms and conditions of the Company's 1999 Amended and Restated Stock Option
Plan as to incentive stock options.
9. Tax Reimbursement Payment.
9.1 Notwithstanding anything to the contrary contained in this Agreement,
in any plan of the Company, or in any other agreement or understanding, the
Company will pay to the Executive, at the times herein specified, an amount (the
"ADDITIONAL AMOUNT") equal to the excise tax under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "CODE"), if any, incurred or to be
incurred by the Executive by reason of the payments under this Agreement,
acceleration of vesting of stock options, stock appreciation rights or
restricted stock granted under the Company's various stock option, stock
appreciation or other employee incentive plans, or payments under any other
plan, agreement or understanding between the Executive and the Company,
constituting Excess Parachute Payments (as defined below), plus all excise taxes
and federal, state and local income taxes incurred or to be incurred by the
Executive with respect to receipt of the Additional Amount. For purposes of this
Agreement, the term "EXCESS PARACHUTE PAYMENT" shall mean any payment or any
portion thereof which would be an "excess parachute payment" within the meaning
of Section 280G(b) of the Code, and which would result in the imposition of an
excise tax on the Executive under Section 4999 of the Code. Attached hereto as
Exhibit A is an example illustrating the computation of the Additional Amount.
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9.2 All determinations required to be made regarding the Additional
Amount, including whether payment of any Additional Amount is required and the
amount of any Additional Amount, shall be made by the independent accounting
firm which is advising the Company (the "ACCOUNTING FIRM"), which shall provide
detailed support calculations to the Company and the Executive on or before the
last day of the calendar year during which occurs the Change of Control (the
"CHANGE OF CONTROL YEAR"). In computing taxes, the Accounting Firm shall use the
highest marginal federal, state and local income tax rates applicable to single
taxpayers for the year in which the Additional Amount is to be paid (unless,
within thirty (30) days after the occurrence of the Change in Control the
Executive specifies in writing to the Company his marginal tax rate) and shall
assume the full deductibility of state and local income taxes for purposes of
computing federal income tax liability. The portion of the Additional Amount
based on the excise tax as determined by the Accounting Firm to be due for the
Change of Control Year shall be paid to the Executive no later than March 1
immediately following the end of the Change of Control Year. The portion of the
Additional Amount based on the excise tax as determined by the Accounting firm
to be due for each calendar year following the Change of Control Year shall be
paid to the Executive on or before March 1 immediately following the end of each
such calendar year. If the Company determines that the excise tax for any year
will be different from the amount originally calculated in the report of the
Accounting Firm delivered at the end of the Change of Control Year, then the
Company shall provide to the Executive detailed support calculations by the
Accounting Firm specifying the basis for the change in the Additional Amount.
10. Indemnification. In addition to such indemnification by the Company
afforded Executive pursuant to a separate Indemnification Agreement executed on
or about the date hereof, the terms of which are hereby incorporated by
reference, Executive shall be indemnified as follows:
10.1 Litigation Costs. If the Executive shall have to institute
litigation brought in good faith to enforce any of his rights under the
Agreement, the Company shall indemnify the Executive for his reasonable
attorney's fees and disbursements incurred in any such litigation.
10.2 Excise Tax. In the event that an excise tax is ever assessed by the
Internal Revenue Service against the Executive (or if the Company and the
Executive mutually agree that an excise tax is payable) by reason of the payment
under this Agreement, acceleration of vesting of stock options, stock
appreciation rights or restricted stock granted under the Company's stock
option, stock appreciation or other employee incentive plans, or payments under
any other plan, agreement or understanding between the Executive and the
Company, constituting Excess Parachute Payments, and if such excise tax was not
included in the determination by the Accounting Firm of the Additional Amount
that has been actually paid to the Executive, the Company agrees to indemnify
the Executive by
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paying to the Executive the amount of such excise tax, together with any
interest and penalties, including reasonable legal and accounting fees and other
out-of-pocket expenses incurred by the Executive, attributable to the failure to
pay such excise tax by the date it was originally due, plus all federal, state
and local income taxes incurred with respect to payment of the excise tax
calculated in a manner analogous to Exhibit A. Upon Executive's receipt from the
Internal Revenue Service ("IRS") of any deficiency notice, notice of assessment
or any other written communication relating to the excise tax on Excess
Parachute Payment, Executive shall give notice thereof to the Company within ten
(10) business days of receipt thereof. In the event of any dispute concerning
the potential excise tax (including any administrative proceedings within the
IRS of court proceedings), the Company, as the indemnifying party, shall be
entitled to assume the defense of such a dispute or proceeding, no Compromise or
settlement of such claim may be effected without the Company's and Executive's
mutual consent (which consents shall not be unreasonably withheld) and the
Company shall have no liability with respect to any compromise or settlement of
such claims effected without its consent. In addition, in the event the Company
assumes defense of any proceeding, the Executive shall not be entitled to
indemnification for outside legal fees and expenses independently incurred by
Executive. This indemnification obligation shall survive the termination of the
Agreement and shall apply to all such excise taxes on Excess Parachute Payments,
whether due before or after termination of employment.
10.3 Repayment of Excess Payment. If the excise tax for any year which is
actually imposed on the Executive is finally determined to be less than the
amount taken into account in the calculation of the Additional Amount that was
paid to the Executive pursuant to Paragraph 9, then the Executive shall repay to
the Company, at the time that the amount of such reduction in excise tax is
finally determined, the portion of the Additional Amount attributable to such
reduction (including the portion of the Additional Amount attributable to the
excise tax and federal and state income taxes imposed on the Additional Amount
being repaid by the Executive, to the extent that such repayment results in a
reduction in such excise tax, federal or state income tax), plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code.
11. Preservation of Business; Fiduciary Responsibility. The Executive shall
use his best efforts to preserve the business and organization of the Company,
to keep available to the Company the services of present employees and to
preserve the business relations of the Company with suppliers, distributors,
customers and others. The Executive shall not commit any act, or in any way
assist others to commit any act, which would injure the Company. So long as the
Executive is employed by the Company, the Executive shall observe and fulfill
proper standards of fiduciary responsibility attendant upon his service and
office.
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12. Restrictive Covenants.
12.1 Non-Compete. During the term of this Agreement (including any
renewal periods as provided in Paragraph 5) and for a period of twenty-four (24)
months following the termination of Executive's employment with the Company
under this Agreement, whether Executive's employment terminates pursuant to the
provisions of Paragraph 6 of this Agreement or otherwise (collectively, the
"RESTRICTED PERIOD"), Executive covenants and agrees that he will not, without
the express approval of the Board of Directors, directly or indirectly anywhere
in the continental United States engage in any activity which is, or participate
or invest in, or provide or facilitate the provision of financing to, or assist
(whether as owner, shareholder, member, partner, director, officer, trustee,
employee, agent or consultant, or in any other capacity), any business,
organization or person other than the Company (or any subsidiary or affiliate of
the Company) whose business, activities, products or services (collectively,
"Business Activities") are competitive with either (i) any of the Business
Activities conducted or offered by the Company or its subsidiaries or affiliates
during any period in which Executive is employed by the Company or any of its
subsidiaries or affiliates, which Business Activities shall include in any event
and without limitation providing software products and marketing, training,
management, billing, collection and insurance brokerage services to entities in
the business of purchasing or financing accounts receivable or in the factoring
business, or (ii) any other Business Activities which the Company or its
subsidiaries or affiliates conducts or offers on, or is actively planning and
actually conducts or offers within twelve (12) months after the date Executive's
employment with the Company terminates. Notwithstanding the foregoing, Executive
may own, directly or indirectly, solely as an investment, securities of any
entity if Executive (a) is not a controlling person with respect to such entity
and (b) does not, directly or indirectly, own five percent (5%) or more of any
class of the securities of such entity.
12.2 Trade Secrets; Confidential Information. Executive covenants and
agrees that, at all times during and after the Restricted Period, he shall keep
secret and not disclose to others or appropriate to his own use or the use of
others any trade secrets, or secret or confidential information or knowledge
pertaining to the Company Business or the affairs of the Company or any of its
affiliates including without limitation trade know-how, trade secrets,
consultant contracts, customer lists, pricing policies, operational methods,
marketing plans or strategies, product development techniques or plans, business
acquisition plans, new personnel acquisition plans, technical processes, designs
and design projects, inventions and research projects; provided, however, that
the following shall not constitute a breach or violation of this Paragraph: any
disclosure made by the Executive in the course of his employment by the Company
as provided in this Agreement, or any disclosure reasonably believed by
Executive to be compelled by law or legal process. Information shall not be
deemed confidential or secret for purposes of this Agreement if it is generally
known in the industry.
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12.3 Employees of the Company. During the Restricted Period, Executive
shall not directly or indirectly hire away or solicit to hire away from the
Company or any of its affiliates any employee of the Company or its affiliates.
12.4 Property of the Company. All memoranda, notes, lists, records and
other documents (and all copies thereof) made or compiled by Executive or made
available to Executive during his employment by the Company concerning the
business or affairs of the Company or any of its affiliates, other than any of
such which may also pertain personally to Executive, shall be the exclusive
property of the Company and shall be delivered to the Company promptly upon the
termination of Executive's employment with the Company or at any other time on
request by the Board of Directors of the Company or such affiliates.
12.5 Rights and Remedies Upon Breach. If Executive breaches, or threatens
to commit a breach of, any of the provisions of Paragraphs 12.1 through 12.4 of
this Agreement (collectively, the "RESTRICTIVE COVENANTS"), the Company shall
have the following rights and remedies, each of which shall be independent of
the other and severally enforceable, and all of which shall be in addition to,
and not in lieu of, any other rights and remedies available to the Company: (a)
the right and remedy to have any of the Restrictive Covenants specifically
enforced by any court having jurisdiction and in Tennessee by an arbitration
panel as provided in Paragraph 15 of this Agreement, it being hereby
acknowledged and agreed by Executive that any such breach or threatened breach
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company; and (b) the right and remedy to
require Executive to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or received by
Executive as a result of any transactions constituting a breach of any of the
Restrictive Covenants, and Executive shall account for and pay over such
benefits to the Company.
12.6 Severability of Covenants. If it is determined that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions. If it is
determined that any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration of such provision, the geographical area
covered thereby, or any other determination of unreasonableness of the
provision, the arbitration panel making such determination shall have the power
to reduce the duration, area or scope of such provision and, in its reduced
form, such provision shall then be enforceable and shall be enforced.
13. Notice. All notices, requests, demands and other communications given
under or by reason of this Agreement shall be in writing and shall be deemed
given when delivered in person or when mailed, by certified mail (return receipt
requested), postage prepaid,
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addressed as follows (or to such other address as a party may specify by notice
pursuant to this provision):
(a) To the Company:
Private Business, Inc.
9010 Overlook Boulevard
Brentwood, Tennessee 37027
Attention: Chairman
(b) Kevin M. McNamara
6313 Wescates Court
Brentwood, Tennessee 37027
14. Controlling Law and Performability. The execution, validity, interpretation
and performance of this Agreement shall be governed by the law of the State of
Tennessee.
15. Arbitration. Any dispute or controversy arising under or in connection with
this Agreement shall be settled by arbitration in Nashville, Tennessee. In the
proceeding the Executive shall select one (1) arbitrator, the Company shall
select one (1) arbitrator and the two (2) arbitrators so selected shall select a
third (3rd) arbitrator. The decision of a majority of the arbitrators shall be
binding on the Executive and the Company. Should one party fail to select an
arbitrator within five (5) days after notice of the appointment of the an
arbitrator by the other party or should the two (2) arbitrators selected by the
Executive and the Company fail to select an arbitrator within ten (10) days
after the date of the appointment of the last of such two (2) arbitrators, any
person sitting as a Judge of the United States District Court for the Middle
District of Tennessee, Nashville Division, upon application of the Executive or
the Company, shall appoint an arbitrator to fill such space with the same force
and effect as though such arbitrator had been appointed in accordance with the
first sentence of this Paragraph 15. Any arbitration proceeding pursuant to this
Paragraph 15 shall be conducted in accordance with the rules of the American
Arbitration Association. Judgment may be entered on the arbitrators' award in
any court having jurisdiction.
16. Expenses. The Company will pay or reimburse the Executive for all costs and
expenses (including arbitration and court costs and attorneys' fees) incurred by
the Executive as a result of any claim, action or proceeding arising out of, or
challenging the validity, advisability or enforceability of this Agreement or
any provision thereof.
17. No Obligation to Mitigate. The Executive shall not be required to mitigate
the amount of any payment provided for in Paragraph 7 by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
Paragraph 7 be reduced
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by any compensation earned by the Executive as a result of employment by another
employer or otherwise.
18. Additional Instruments. The Parties shall execute and deliver any and all
additional instruments and agreements that may be necessary or proper to carry
out the purposes of this Agreement.
19. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the Parties relating to the matters contained herein and supersedes
all prior agreements and understandings, oral or written, between the Parties
with respect to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the Party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
20. Separability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by the decision of any arbitrator or by decree of a court of last
resort, the Parties shall promptly meet and negotiate substitute provisions for
those rendered or declared illegal or unenforceable to preserve the original
intent of this Agreement to the extent legally possible, but all other
provisions of this Agreement shall remain in full force and effect.
21. Assignments. The Company may assign (whether by operation of law or
otherwise) this Agreement only with the written consent of the Executive, which
consent shall not be withheld unreasonably, and in the event of an assignment of
this Agreement, all covenants, conditions and provisions hereunder shall inure
to the benefit of and be enforceable against the Company's successors and
assigns. The rights and obligations of Executive under this Agreement are
personal to him, and no such rights, benefits or obligations shall be subject to
voluntary or involuntary alienation, assignment or transfer.
22. Effect of Agreement. Subject to the provisions of Paragraph 21 with respect
to assignments, this Agreement shall be binding upon the Executive and his
heirs, executors, administrators, legal representatives and assigns and upon the
Company and respective successors and assigns.
23. Execution. This Agreement may be executed in multiple counterparts each of
which shall be deemed an original and all of which shall constitute one and the
same instrument.
24. Waiver of Breach. The waiver by either Party of a breach of any provision of
the Agreement by the other Party shall not operate or be construed as a waiver
by such Party of any subsequent breach by such other Party.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
October 31, 1999.
PRIVATE BUSINESS, INC.
By: /s/ William B. King
-----------------------------
William B. King, Chairman
EXECUTIVE
/s/ Kevin M. McNamara
---------------------------------
KEVIN M. MCNAMARA
14
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EXHIBIT A
1. Excess Parachute Payment Subject to Excise Tax $50,000
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2. Excise Tax on Item 1 @ 20% $10,000
--------------------------
3. Total Additional Amount Under Agreement* $24,752
---------------------------------------
4. Verification of Total Additional Amount
---------------------------------------
1) Excise Tax on additional $24,752 @ 20% $ 4,950
2) Federal Income tax on $24,752
a) Additional Income $24,752
b) State Income Tax Deduction 0
-------
c) Net Additional Federal Taxable Income 24,752
d) Federal Income Tax @ 39.6% $ 9,802
4) Total Taxes on Additional Amount $14,752
5) Net Amount Available to Key Employee to Pay $10,000
Excise Tax in #2
------------------
*The formula used to compute the Additional Amount is to divide the Excise Tax
amount on the excess parachute payment by a percentage equal to 100% less the
sum of the Excise Tax percentage plus the state income tax percentage plus the
federal tax percentage less a percentage determined by multiplying the federal
tax percentage times the state tax percentage. Thus in the example above, the
following percentages should be subtracted from 100%:
1) Excise Tax Percentage - 20.00%
2) Assumed State Tax Percentage - 0.00%
3) Federal Income Tax Percentage - 39.60%
-----
Total 59.60%
Less 39.6% Times 0% 0.00%
------
59.60%
The resulting percentage of 100% - 59.60% = 40.40% should be divided into
$10,000 = $24,752.
15