Private Business Inc. Contracts
Sample Business Contracts
Mutual Separation Agreement With Waiver and Release of All Claims - Private Business Inc. and Kevin McNamara
EXECUTION COPY
MUTUAL SEPARATION AGREEMENT WITH
WAIVER AND RELEASE OF ALL CLAIMS
1. Parties. This Mutual Separation Agreement with Waiver and Release of
All Claims ("AGREEMENT") covers all understandings between KEVIN M.
MCNAMARA (hereinafter "EMPLOYEE") and PRIVATE BUSINESS, INC.
(hereinafter "CORPORATION") relating to Employee's separation from
employment with the Corporation. Except for continuing obligations
under the Employment Agreement (as defined below), that certain
Indemnification Agreement, dated as of October 31, 1999, by and between
Employee and the Corporation, and the Stock Option Agreements
referenced in Section 5 below, no other expressed, implied, written or
oral agreement between Employee and the Corporation relating to
Employee's separation from employment with the Corporation will have
any effect unless it is in writing and is signed and dated by both
parties after the date of this Agreement.
2. Separation Date. Employee's separation from employment with the
Corporation is effective on February 1, 2001 (the "SEPARATION DATE").
After that date, except for any earned but unpaid compensation for his
services as an employee prior to the Separation Date (including, but
not limited to, salary and vacation pay), the only payments, benefits
or other things of value that Employee 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. Employee and Corporation acknowledge
and agree that both parties are subject to a certain Amended and
Restated Employment Agreement effective October 31, 1999 (the
"EMPLOYMENT AGREEMENT") and that such Employment Agreement shall
terminate effective February 1, 2001, except that the provisions of the
Employment Agreement intended to survive the termination shall survive
and shall be enforceable as written.
4. Severance Payment. In exchange for the promises that Employee makes in
this Agreement, the Corporation agrees to pay to Employee severance pay
in the amount of Three Hundred Fifteen Thousand Dollars ($315,000),
less statutory withholdings and deductions ("SEVERANCE AMOUNT"), to be
paid upon the execution of this Agreement. The parties agree that this
Severance Amount represents the total cash amount Employee is entitled
to under the Employment Agreement, other than any earned but unpaid
salary and unreimbursed expenses as of the Separation Date, which shall
not reduce the Severance Amount.
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5. Options Exercise Period. Employee and Corporation acknowledge and agree
that, as of the Separation Date, Employee had been awarded vested
options to purchase a total of 477,223 shares of common stock of the
Corporation, consisting of (i) 236,111 shares at an exercise price of
$2.125 per share, (ii) 118,056 shares at an exercise price of $8.00 per
share, (iii) 118,056 shares at an exercise price of $12.00 per share,
and (iv) 5,000 shares at an exercise price of $1.781. Employee and
Corporation agree that these Options shall remain exercisable until two
years from the Separation Date.
6. COBRA Continuation Rights. Pursuant to the Consulting Agreement between
Employee and Corporation effective February 1, 2001 ("CONSULTING
AGREEMENT"), Employee's health insurance benefits from the Corporation
shall terminate on and Employee shall be entitled to COBRA continuation
benefits provided under the Corporation's group health plan beginning
on the Separation Date. For so long as the Consulting Agreement shall
remain in effect, should Employee elect COBRA coverage, the Corporation
shall pay Employee, periodically, as additional severance, an amount
equal to Employee's COBRA premium actually paid by Employee.
7. Mutual Waiver and Release. In exchange for the promises made in this
Agreement, each party agrees to voluntarily, willingly, and knowingly
waive, release, and forever discharge all rights and claims that it
has, had or may have against the other party arising out of or relating
in any manner to Employee's employment and/or separation from
employment with the Corporation, as follows, but subject to the
exceptions set forth in Section 8: For and in consideration of the
promises contained in this Agreement, each party hereby 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 Employee's
employment and/or separation from employment with the Corporation. The
rights and claims that Employee 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 Employee Retirement Income Security
Act, the Family and Medical Leave Act of 1993, and the Comprehensive
Omnibus Budget Reconciliation Act. This is not a complete list, and
Employee waives, releases, and discharges all other rights and claims
Employee has, had, or may have under all other federal, state and local
laws, regulations and ordinances, including but not limited to
statutory and common law contract, tort, and/or wrongful discharge
claims arising out of or relating in any manner to Employee's
employment and/or separation from employment with the Corporation but
subject to the
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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 Employee's employment
and/or separation from employment with the Corporation.
8. Exceptions to Mutual Waiver and Release. The foregoing language in
Section 7 notwithstanding, the Corporation and Employee 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 Employee retains coverage under such plans or
programs; (c) any claims under the Employment Agreement for provisions
intended to survive the termination of the Employment Agreement; or (d)
any disputes arising under the Consulting Agreement.
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.
11. Confidentiality. Corporation and Employee 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 Employee 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 Employee makes each such person aware of the
confidentiality provisions of this paragraph and that each such person
to whom such information is disclosed has
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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. Attorneys' Fees Upon Breach. In the event of a material breach of this
Agreement, the defaulting party agrees to pay the non-breaching party
its reasonable attorneys' fees and expenses in any action arising from
or relating to the enforcement of the Agreement.
13. 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.
14. Contemplation Period. Employee acknowledges that on or about February
28, 2001, the Corporation gave Employee an unsigned copy of this
Agreement and informed Employee that he had 45 days from the date of
receipt to consider it before signing.
15. Right of Revocation. Employee also acknowledges that the Corporation
has informed Employee that for a period of 7 days after the date upon
which Employee signs this Agreement, Employee may revoke it in writing.
Employee further acknowledges understanding that if Employee revokes
this Agreement, Employee will lose all benefits of this Agreement.
16. Binding Effect; Successors and Assigns. Employee, 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.
17. Cooperation; Mutual Respect; No Disparagement. The parties agree that
certain matters, which Employee was involved in during his period of
service to the Corporation, may necessitate Employee's cooperation in
the future. Employee agrees to cooperate with all reasonable requests
of the Corporation for such assistance for a period of one year
following termination of the Consulting Agreement, provided any such
requests do not unduly or materially interfere with the Employee's
employment or activities during such time. Any reasonable expenses
incurred by Employee in providing such assistance shall be paid for by
the Corporation. Each party agrees to mutually respect the other and to
refrain
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from making any disparaging comments about the other or disparaging the
business of the other from the date of this Agreement and thereafter.
18. Vacation Pay. Effective with the Separation Date, Employee will cease
to accrue vacation benefits. Corporation will pay to Employee the value
of accrued vacation benefits, agreed to be $12,923, less statutory
withholdings and deductions, as soon as practical following execution
hereof.
EMPLOYEE ACKNOWLEDGES THAT HE HAS CONSULTED AN ATTORNEY WITH RESPECT TO THIS
AGREEMENT BEFORE SIGNING THIS AGREEMENT.
/s/ KEVIN M. MCNAMARA
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KEVIN M. MCNAMARA
Date: 3/9/2001
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Personally appeared Kevin M. McNamara before me this ___ day of
____________, 2001.
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NOTARY PUBLIC
My Commission Expires:
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PRIVATE BUSINESS, INC.
By:
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Title:
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Date:
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