EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into this 10th day of
August, 2001, by and between G. XXXX XXXXX (the "Consultant") and PRIVATE
BUSINESS, INC., a Tennessee corporation (the "PBI").
WHEREAS, Towne Services, Inc. ("Towne") and PBI have agreed to a business
combination (the "Merger") whereby Towne would merge with and into a subsidiary
of PBI, with Towne being the surviving entity in the merger and a direct
wholly-owned subsidiary of PBI;
WHEREAS, the Consultant was the Chief Executive Officer of Towne prior to the
Merger and resigned from such position upon consummation of the Merger;
WHEREAS, PBI desires for Consultant to remain and assist with PBI's
post-Merger transition; and
WHEREAS, PBI has agreed to retain the Consultant to assist in such
transition, and the Consultant has agreed to do so, subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the amounts set forth below and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Engagement as Consultant. PBI hereby retains Consultant, and Consultant
hereby accepts engagement by PBI, on the terms and conditions specified herein.
2. Term. The term of this Agreement shall be for a period commencing on August
10, 2001 and continuing for a term of six (6) months (the "Term").
3. Duties of Consultant. Consultant shall assist PBI with regard to transition
matters related to the Merger. Consultant shall assume such duties as are
reasonably requested by PBI, provided that such duties and responsibilities are
agreeable to Consultant.
4. Compensation. Consultant shall be paid at the rate of Four Hundred Thousand
Dollars ($400,000) per year, or a total of Two Hundred Thousand Dollars
($200,000) during the Term, paid in accordance with the then current payroll
policies of PBI.
5. Covenant Not To Compete. During the Term and for a period of twelve (12
months following termination of this Agreement (the "Restricted Period"),
Consultant covenants and agrees that he will not, without the express approval
of PBI, 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 PBI (or any
subsidiary or affiliate of PBI) whose business, activities, products or services
(collectively, "Business Activities") are competitive with either (i) any of the
Business Activities conducted or offered by PBI or its subsidiaries or
affiliates, as of or on the effective date, 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 PBI or its subsidiaries or affiliates conducts or offers on, or is
actively planning and actually conducting or offering as of or on the effective
date. Notwithstanding the foregoing, Consultant may own, directly or indirectly,
solely as an investment, securities of any entity if Consultant (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 5 shall not be
binding on the Consultant if, during the Restricted Period, PBI materially
breaches the terms of this Agreement, and such material breach is not cured by
PBI within ten (10) days following receipt of a written notice from Consultant
which describes in detail the nature of the material breach. As a consideration
for the obligations of Consultant pursuant to this Section 5, PBI agrees to pay
Consultant Three Hundred Twenty Thousand Dollars ($320,000). Such payment shall
be in addition to the compensation described in Section 2 and shall be made by
PBI to the Consultant in good funds upon termination of the Term.
6. Trade Secrets; Confidential Information. Consultant covenants and agrees
that, at all times during and after the Term, 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
business affairs of PBI 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 any disclosure reasonably
believed by Consultant to be compelled by law or legal process shall not
constitute a breach or violation of this section. Information shall not be
deemed confidential or secret for purposes of this Agreement if it is generally
known in the industry.
7. Rights and Remedies Upon Breach. If Consultant breaches, or threatens to
commit a breach of, any of the provisions of Sections 5 or 6 of this Agreement
(collectively, the "Restrictive Covenants"), PBI shall have the right and remedy
to have any of the Restrictive Covenants specifically enforced by any court
having jurisdiction in Tennessee, it being hereby acknowledged and agreed by
Consultant and that money damages will not provide an adequate remedy to PBI,
which rights shall be in addition to, and not in lieu of, any other rights and
remedies available to PBI.
8. 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 PBI:
Private Business, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chairman
(b) To Consultant:
G. Xxxx Xxxxx
#9 Governors Way
Brentwood, Tennessee 37027
9. Controlling Law and Performability. The execution, validity, interpretation
and performance of this Agreement shall be governed by the laws of the State of
Tennessee.
10. 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 Consultant shall select one (1) arbitrator, PBI 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 Consultant and PBI. Should one party fail to select an arbitrator within
five (5) days after notice of the appointment of an arbitrator by the other
party or should the two (2) arbitrators selected by the Consultant and PBI 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 Consultant or PBI, 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 10. Any
arbitration proceeding pursuant to this Paragraph 10 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.
11. 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.
12. 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. Parties
acknowledge the entering into of the Separation Agreement between Xxxxx and
Towne.
13. Severability. 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.
14. Assignments. PBI 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 PBI's successors and assigns.
The rights and obligations of Consultant 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.
15. Effect of Agreement. Subject to the provisions of Paragraph 14 with respect
to assignments, this Agreement shall be binding upon the Consultant and his
heirs, executors, administrators, legal representatives and assigns and upon PBI
and respective successors and assigns.
16. 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.
17. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as set
forth above.
PRIVATE BUSINESS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, President
CONSULTANT
/s/ G. Xxxx Xxxxx
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G. XXXX XXXXX
