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EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT OF
XXXXX X. XXXXXX
This Executive Employment Agreement ("AGREEMENT") is entered into
between PRIVATE BUSINESS, INC., a Tennessee corporation ("COMPANY"), and XXXXX
X. XXXXXX, a resident of Georgia ("EXECUTIVE"), executed as of _, 2001 and
effective as of the Effective Date (as defined below). The Company and the
Executive are sometimes referred to herein as the "PARTIES."
1. Introduction. Pursuant to an Agreement and Plan of Merger between the
Company, Towne Services, Inc., and Towne Acquisition Corporation, a wholly owned
subsidiary of the Company, as of the date of the consummation of the merger
contemplated by such Agreement and Plan of Merger, Towne Acquisition Corporation
will merge with and into Towne Services, Inc. (the "EFFECTIVE DATE"). The
Company desires to employ Executive and the Executive desires to be employed by
the Company as of the Effective Date. 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. As of the Effective Date, 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, the Executive shall serve
the Company as Chief Operating Officer of the Company; 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. Furthermore, in the event Executive
is employed by the Company on January 1, 2002 and subject to the power of the
Board of Directors of the Company to elect and remove officers, the Executive
shall also serve the Company as President of the Company, upon appointment by
the Company's Board of
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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.
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 during the term of
his employment under this Agreement, the Executive shall be paid at an annual
rate of not less than Two Hundred Twenty Five Thousand Dollars ($225,000),
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 2001
(prorated from the Effective Date as to 2001), Executive shall be eligible to be
paid an annual incentive cash bonus ("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) General. Executive may be granted options to acquire
shares of the Company's common stock at anytime at the discretion of
the Board. 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. 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 (the "STOCK OPTION PLAN").
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(b) Initial Grant. As of the Effective Date, the Company
shall grant Executive an option to purchase 200,000 shares of Company
common stock in accordance with the terms of Paragraph 4.3(a) and
pursuant to the Stock Option Plan (the "INITIAL OPTION GRANT").
One-half of the Initial Option Grant (or options to purchase 100,000
shares) shall vest on December 31, 2001 provided Executive remains
employed on such date, and, beginning on the Effective Date, the
remaining one-half of the Initial Option Grant shall vest 1/48th per
month of continued employment by the Executive on the last calendar day
of each such month provided Executive remains employed on each such
date.
(c) Towne Options. Pursuant to the terms of the Agreement
and Plan of Merger, the 294,685 outstanding stock options granted by
Towne Services, Inc. to Executive prior to the Effective Date shall be
assumed by the Company.
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; provided,
however, that the Company shall pay for all premiums and deductibles
for Executive's health insurance under such group benefit plans.
(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 policy for other senior officers.
4.5 Housing. From the Effective Date until December 31, 2001,
subject to Executive's continued employment by the Company, the Company shall
provide Executive a two bedroom furnished apartment, including utilities.
4.6 Automobile. On the Effective Date, the Company shall transfer
to the Executive title to the Company vehicle currently utilized by Executive.
5. Term. The term of this Agreement shall be from the Effective Date until
December 31, 2001 (the "INITIAL TERM"), and shall thereafter automatically be
extended for an additional period of one (1) year on a yearly basis, provided,
however, that on or after December 1, 2001, either the Executive or the Company
may terminate this Agreement by giving the other party thirty (30) days advance
notice that such party intends to terminate this Agreement.
6. Termination and Resignation. Notwithstanding Paragraph 5, the Company
shall have the right to terminate the Executive's employment hereunder at any
time and for any
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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 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. If (a) the Company at any time terminates
the Executive's employment for Cause (as defined below), or (b) prior to
January 1, 2002, the Executive voluntarily resigns for any reason other than 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 any 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 Paragraph 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 Multiple Base Salary. If (a) after January 1, 2002, Executive
resigns for any reason, (b) the Company at any time terminates the Executive's
employment without Cause, (c) the Company fails to renew Executive's employment
effective after the Initial Term, or (d) prior to January 1, 2002, Executive
resigns because of an uncured material breach by the Company of any term of this
Agreement, then in each case:
(i) the Company will pay to the Executive, in equal 1/24 monthly
payments over a term of two (2) years, a payment of Nine Hundred Thirty Thousand
Dollars ($930,000) as consideration for Executive's continued compliance with
the restrictive covenants set forth in Paragraphs 9.1, 9.2 and 9.3 of this
Agreement and as consideration for Executive's obligation to provide certain
consulting services to the Company as set forth in Paragraph 9.7 of this
Agreement;
(ii) any vested options previously granted to the Executive by the
Company shall remain exercisable for the remainder of their stated term; and
(iii) for the period from the termination date until the date Executive
reaches the age sixty-five (65) (or, with respect to benefits provided to
Executive's spouse, until the date Executive's spouse reaches the age sixty-five
(65)) (the "CONTINUATION PERIOD"), the Company shall at its expense on behalf of
the Executive and his spouse arrange for the continuation of the life insurance,
disability, medical, dental and hospitalization benefits
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provided (x) to the Executive at any time during the 90-day period prior to the
date of such termination or at any time thereafter or (y) to other similarly
situated executives who are in the employ of the Company during the Continuation
Period. Nothing provided herein shall be construed to limit Executive's
post-employment continuation rights under COBRA, and to the extent any such
benefits are continued pursuant to COBRA, the Company shall periodically
reimburse Executive for his out-of-pocket premiums for benefits continued
pursuant to COBRA. The coverage and benefits (including deductibles and costs)
provided in this Paragraph 7.3(iii) during the Continuation Period shall be no
less favorable to the Executive and his dependents and beneficiaries than the
most favorable of such coverages and benefits during any of the periods referred
to in clauses (x) and (y) above. The Company's obligation hereunder with respect
to the foregoing benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's benefit plans, in
which case the Company may reduce the coverage of any benefits it is required to
provide the Executive hereunder as long as the aggregate coverages and benefits
of the combined benefit plans is no less favorable to the Executive than the
coverages and benefits required to be provided hereunder. This subsection (iii)
shall not be interpreted so as to limit any benefits to which the Executive or
his dependents or beneficiaries may be entitled under any of the Company's
employee benefit plans, programs or practices following the Executive's
termination of employment, including without limitation, retiree medical and
life insurance benefits.
7.3 Certain Definitions. The following terms not defined elsewhere
in this Agreement shall have the following definitions:
(a) Termination by the Company of the Executive's
employment for "CAUSE" shall mean termination upon a fraudulent act,
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 8 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
Executive a copy of a resolution, duly adopted by the affirmative vote
of not less than one half (1/2) 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.
(b) The "CODE" shall refer to the Internal Revenue of
1986, as amended.
(c) 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 Operating Officer
(except in the event of termination for Cause) and the Company's
failure during the Restricted Period to pay Executive any payments due
Executive pursuant to Paragraph 7.2(i), which failure is not cured by
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the Company within ten (10) days following receipt of written notice
thereof from Executive.
8. 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
knowingly commit any act, or in any way assist others to commit any
act, which would directly injure the Company. So long as the Executive
is employed by the Company, the Executive shall observe and fulfill
applicable standards of fiduciary responsibility attendant upon his
service and office.
9. Restrictive Covenants.
9.1 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, or has served as a director of the Company, 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, (i) competitive Business Activities
shall not include Executive's activities in the equipment leasing business, such
as GE Capital, CIT, and Xxxxx Fargo, and (ii) 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. Notwithstanding, the provisions contained in this
Section 9.1 shall not be binding on the Executive if, during the Restricted
Period, the Company materially breaches the terms of this Agreement, and such
material breach is not cured by the Company within ten (10) days following
receipt of a written notice from Executive which describes in detail the nature
of the material breach.
9.2 Trade Secrets; Confidential Information. Executive covenants
and agrees that, at all times during and after the Restricted Period, he shall
keep secret and not
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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.
9.3 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.
9.4 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 pertain primarily 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.
9.5 Rights and Remedies Upon Breach. If Executive breaches, or
threatens to commit a breach of, any of the provisions of Paragraphs 9.1 through
9.4 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 12 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.
9.6 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
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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.
9.7 Consulting. 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, including the Company's failure to
renew Executive's employment after the Initial Term (collectively, the
"CONSULTING PERIOD"), Executive covenants and agrees that he will consult with
the Company from time to time, as reasonably requested by the Company with
Executive's consent which will not be unreasonably withheld.
10. 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, 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.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chairman
(b) To Executive:
Xxxxx X. Xxxxxx
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11. Controlling Law and Performability. The execution, validity,
interpretation and performance of this Agreement shall be governed by the law of
the State of Tennessee.
12. 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 12. Any arbitration proceeding pursuant to this
Paragraph 12 shall be conducted in accordance with the rules of the American
Arbitration
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Association. Judgment may be entered on the arbitrators' award in any court
having jurisdiction.
13. 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 by any compensation earned by the Executive as a result
of employment by another employer or otherwise.
14. 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.
15. 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.
16. 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.
17. Assignments. The Company may assign this Agreement 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.
18. Effect of Agreement. Subject to the provisions of Paragraph 17 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.
19. 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.
20. 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 effective
as set forth above.
PRIVATE BUSINESS, INC.
By:
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Xxxxxxx X. Xxxx, Chairman
EXECUTIVE
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XXXXX X. XXXXXX
