EXHIBIT 10.1
AMENDMENT OF EMPLOYMENT AGREEMENT
This Amendment of Employment Agreement ("AGREEMENT") is entered into this
21st day of October, 2005, by and between Xxxxx X. Xxxxxx ("EXECUTIVE") and
Private Business, Inc. (the "COMPANY"). Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Employment Agreement
(as defined below).
WHEREAS, Executive is currently employed by the Company as its Chief
Executive Officer pursuant to the terms of that certain Employment Agreement
dated as of July 1, 2004, as amended (the "EMPLOYMENT AGREEMENT"); and
WHEREAS, the Company is currently planning to enter into that certain
Agreement and Plan of Merger dated of even date herewith (the "MERGER
AGREEMENT"), by and among the Company, CSL Acquisition Corporation, Captiva
Solutions, LLC and the Captiva Signatories (as defined in the Merger Agreement),
pursuant to which the Company will acquire Captiva Solutions, LLC; and
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement Executive will become the Company's President and Chief Operating
Officer and will resign from the Company's Board of Directors, and Xx. Xxxx
Xxxxx will become the Company's Chief Executive Officer and join the Board; and
WHEREAS, Executive has indicated that he is willing to consent to certain
changes in his Employment Agreement resulting from the changes contemplated by
the Merger Agreement; and
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. CONSENT TO CHANGE IN DUTIES AND TITLE. Executive hereby agrees that
effective upon the closing of the merger that is contemplated by the Merger
Agreement (the "EFFECTIVE DATE") that he will cease to be the Company's Chief
Executive Officer, and that as of such date, he will become the Company's
President and Chief Operating Officer. Xx. Xxxxxx also agrees that as of the
Effective Date he will cease to be on the Board of Directors and this Agreement
shall serve as his resignation from the Board. As of the Effective Date, without
further action, the Employment Agreement shall be amended by deleting Section II
in its entirety and replacing it with the following:
"SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment, as such term is defined herein
below, the Executive agrees to serve as President and Chief Operating
Officer of the Company and to be responsible for the typical management
responsibilities
1
expected of a chief operating officer of a similarly-sized publicly-traded
and listed company and such other responsibilities as may be assigned to
Executive by the Board of Directors of the Company or the Chief Executive
Officer consistent with the responsibilities expected of a president and
chief operating officer of a similarly-sized, publicly-traded and listed
company."
Except as amended by this Agreement, following the Effective Date the
Executive will continue to be employed by the Company in accordance with the
terms of the Employment Agreement.
2. ACKNOWLEDGEMENT REGARDING CONSTRUCTIVE DISCHARGE. The parties hereto
hereby irrevocably agree and acknowledge, on behalf of themselves, their heirs
and assigns, that the actions described in Section 1 of this Agreement, if
effected, shall not constitute a Constructive Discharge under the Employment
Agreement.
3. STOCK OPTIONS. The Company agrees that:
(a) Executive is hereby granted an option to acquire One Hundred
Fifty-Five Thousand (155,000) shares of Company common stock at an
exercise price of $1.32 per share in the form attached hereto as
Exhibit A (the "Option Grant"). All shares issued under the Option
Grant shall vest automatically on the Effective Date.
(b) All unvested options under that certain stock option grant to the
Executive dated August 4, 2004, in the amount of One Hundred Thousand
(100,000) shares, at an exercise price of $1.83 per share, shall
immediately vest and become exercisable on the Effective Date.
4. SECTION 409A. Notwithstanding any provisions of this Agreement or
the Employment Agreement to the contrary, in the event any payment otherwise
required to be made under this Agreement or the Employment Agreement would be
considered to be a payment of nonqualified deferred compensation, such payment
shall be made in a time and manner such that no amount will be required to be
included in Executive's income by reason of a failure to comply with the
requirements of Sections 409A(a)(2), (3) and (4) of the Internal Revenue Code of
1986, as amended (the "Code") (such payments, therefore, being included in
Executive's income at the time of actual receipt pursuant to other applicable
provisions of the Code). This Section 4 shall apply to such payments and to such
extent as necessary so as to avoid imposition of tax or additions to tax
pursuant to Code Section 409A(a)(1), and may result in modifications to payments
that include, but are not limited to, a requirement that a payment otherwise
required to be made pursuant to this Agreement or the Employment Agreement in
connection with the termination of Executive's employment with the Company be
deferred until six months after such termination of employment, if such deferral
of payment is necessary to comply with the requirements of Code Section
409A(a)(2)(B)(i).
5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
2
6. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) constitute the
entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and are not intended to confer and shall not upon any person other than the
parties any rights or remedies hereunder.
7. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Tennessee, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
8. ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties without the
prior written consent of the other parties. This Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EXECUTIVE:
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
COMPANY:
By: /s/ J. Xxxxx Xxxxxxxxx
----------------------
Name: J. Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
4
