RELEASE AGREEMENT AND COVENANT NOT TO SUE
Exhibit 10.24
RELEASE AGREEMENT AND COVENANT NOT TO XXX
THIS RELEASE AGREEMENT AND COVENANT NOT TO XXX (the “Agreement”) is entered into by
and between PRG-Xxxxxxx USA, Inc., a Georgia corporation (the “Company”) and XXXXX X.
XXXXXX, XX., a resident of the State of Georgia (“Executive”), as of the Effective Date of
the Agreement, as defined below.
WITNESSETH
Executive and Company are parties to that certain offer letter agreement, dated March 5,
2004, as amended (“Employment Agreement”).
Executive and Company are parties to that certain Change of Control and Restrictive Covenant
Agreement, dated February 14, 2005 (“Change of Control Agreement”) which amends in certain respects
the Employment Agreement.
Executive and Company are terminating their employment relationship, subject to the terms
hereof; and
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein and
other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Termination of Employment. The parties hereto hereby acknowledge and agree that
Executive’s employment with Company terminated as of the close of business on February 17, 2006.
2. General Release of Claims. In consideration of the covenants from Company to
Executive set forth herein and in the Employment Agreement and Change of Control Agreement, the
receipt and sufficiency of which is hereby acknowledged, Executive, on his behalf and on behalf of
his heirs, devisees, legatees, executors, administrators, personal and legal representatives,
assigns and successors in interest (collectively, the “Derivative Claimants” and each a
“Derivative Claimant”), hereby IRREVOCABLY, UNCONDITIONALLY AND GENERALLY RELEASES,
ACQUITS, AND FOREVER DISCHARGES, to the fullest extent permitted by law, Company and each of
Company’s directors, officers, employees, representatives, stockholders, predecessors, successors,
assigns, agents, attorneys, divisions, subsidiaries and affiliates (and agents, directors,
officers, employees, representatives and attorneys of such stockholders, predecessors, successors,
assigns, divisions, subsidiaries and affiliates), and all persons acting by, through, under or in
concert with any of them (collectively, the “Releasees” and each a “Releasee”), or
any of them, from any and all charges, complaints, claims, damages, actions, causes of action,
suits, rights, demands, grievances, costs, losses, debts, and expenses (including attorneys’ fees
and costs incurred), of any nature whatsoever, known or unknown, that Executive now has, owns, or
holds, or claims to have, own, or hold, or which Executive at any time heretofore had, owned, or
held, or claimed to have, own, or hold from the beginning of time to the date that Executive signs
this Agreement, including, but not limited to, those claims arising out of or relating to (i) any
agreement, commitment, contract, mortgage, deed of trust, bond, indenture, lease, license, note,
franchise, certificate, option, warrant, right or other instrument, document, obligation or
arrangement, whether written or oral, or any other relationship, involving Executive and/or any
Releasee, (ii) breach of any express or
implied contract, breach of implied covenant of good faith and fair dealing,
misrepresentation, interference with contractual or business relations, personal injury, slander,
libel, assault, battery, negligence, negligent or intentional infliction of emotional distress or
mental suffering, false imprisonment, wrongful termination, wrongful demotion, wrongful failure to
promote, wrongful deprivation of a career opportunity, discrimination (including disparate
treatment and disparate impact), hostile work environment, sexual harassment, retaliation, any
request to submit to a drug or polygraph test, and/or whistleblowing, whether said claim(s) are
brought pursuant to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, as amended, the Equal Pay Act, 42 U.S.C. Sections 1981, 1983, or 1985, the Vocational
Rehabilitation Act of 1977, the Americans with Disabilities Act, the Family and Medical Leave Act
or the Fair Credit Reporting Act or any other constitutional, federal, regulatory, state or local
law, or under the common law or in equity, and (iii) any other matter (each of which is referred to
herein as a “Claim”); provided, however, that nothing contained herein shall operate to
release any obligations of Company, its successors or assigns arising under any claims under the
Employment Agreement, the Change of Control Agreement, or under any written Company benefit plans,
any 401(k) plan, any pension plan and any similar plan, to the extent Executive is entitled to
benefits under the respective terms thereof.
3. Release of Unknown Claims. Executive recognizes that he may have some claim,
demand, or cause of action against the Releasees relating to any Claim of which he is totally
unaware and unsuspecting and which is given up by the execution of this Agreement. It is
Executive’s intention in executing this Agreement with the advice of legal counsel that this
Agreement will deprive him of any such Claim and prevent Executive or any Derivative Claimant from
asserting the same. The provisions of any local, state, federal, or foreign law, statute, or
judicial decision providing in substance that this Agreement shall not extend to such unknown or
unsuspecting claims, demands, or damages, are hereby expressly waived.
4. Acknowledgment. Executive acknowledges that he has thoroughly discussed all
aspects of this Agreement with his attorney, that he has carefully read and fully understands all
of the provisions of this Agreement, and that he is voluntarily entering into this Agreement.
Executive hereby waives the requirement under the Age Discrimination in Employment Act that
Executive has forty-five (45) days to review and consider this Agreement before executing it.
Executive acknowledges and understands that he shall have seven (7) days after signing this
Agreement during which he may revoke this Agreement by providing written notice to Company within
seven (7) days following its execution. Any notice of revocation of this Agreement shall not be
effective unless given in writing and received by Company within the seven-day revocation period
via personal delivery, overnight courier, or certified U.S. mail, return receipt requested, to
PRG-XXXXXXX USA, INC., 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: General
Counsel. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE AND ENFORCEABLE UNTIL SUCH SEVEN (7) DAY PERIOD
HAS EXPIRED. IF EXECUTIVE REVOKES THIS AGREEMENT WITHIN SUCH SEVEN (7) DAY PERIOD, EXECUTIVE WILL
NOT BE ENTITLED TO RECEIVE ANY OF THE RIGHTS AND BENEFITS DESCRIBED HEREIN OR UNDER THE EMPLOYMENT
AGREEMENT OR CHANGE OF CONTROL AGREEMENT, EXCEPT TO THE EXTENT THAT EXECUTIVE WOULD HAVE BEEN
ENTITLED TO RECEIVE SUCH BENEFITS PROVIDED UNDER THE TERMS OF HIS EMPLOYMENT AGREEMENT.
Executive furthermore acknowledges receipt, in Exhibit “A” attached hereto, of: (1) a
list of the job titles and ages of all employees who were selected for Company’s involuntary
termination program applicable to Executive’s decisional unit; (2) information describing any
class, unit, or group of individuals covered by such program, any selection factors for such
program, and any time limits applicable to such program; and, (3) a list of employees in the same
job classification or organizational unit (meaning the same decisional unit) of Company who were
not selected for the program.
5. No Assignment. Executive represents and warrants that he has not assigned or
transferred, or purported to assign or transfer, to any person, entity, or individual whatsoever,
any of the Claims released herein. Executive agrees to indemnify and hold harmless the Releasees
against any Claim based on, arising out of, or due to any such assignment or transfer.
6. Indemnification. In furtherance of the foregoing, Executive agrees on behalf of
himself and the Derivative Claimants not to xxx or prosecute any matter against any Releasee with
respect to any Claim and agrees to hold each Releasee harmless with respect to any such suit or
prosecution in contravention of this Section 6. Executive understands that if this Agreement were
not signed, he would have the right voluntarily to assist other individuals or entities in bringing
Claims against the Releasees. Executive hereby waives that right and hereby agree that he will not
voluntarily provide any such assistance. To the extent that applicable law prohibits Executive
from waiving his right to bring and/or participate in the investigation of a Claim, Executive
nevertheless waives his right to seek or accept any damages or relief in any such proceeding.
Executive shall continue to be entitled to indemnification to the extent provided by, and in
accordance with the terms of, any other indemnification provision under which Executive was
entitled prior to the execution of this Agreement, including, without limitation, under the Bylaws
of the Company or PRG-Xxxxxxx International, Inc. (“Parent”), and any Indemnification Agreement
currently in effect between Executive and the Company or Parent.
7. Representation Regarding Knowledge of Trade Secrets and/or Inventions. Executive
hereby acknowledges and confirms that he has no right, claim or interest to any property,
invention, trade secret, information or other asset used in the business of Company and that all
such property, inventions, trade secrets, information and other assets used in the business of
Company are owned by Company or its affiliates or licensed to Company or its affiliates by third
parties not affiliated with Executive.
8. Return of Company Property and Proprietary Information. (a) Executive further
promises, represents and warrants that Executive has returned or will return to the Company by no
later than February 17, 2006 (a) all property of Company, including, but not limited to, any and
all files, records, credit cards, keys, identification cards/badges, computer access codes,
computer programs, instruction manuals, equipment (including computers) and business plans; (b) any
other property which Executive prepared or helped to prepare in connection with Executive’s
employment with Company; and (c) all documents, including logs or diaries, all tangible materials,
including audio and video tapes, all intangible materials (including computer files), and any and
all copies or duplicates of any such tangible or intangible materials, including any duplicates,
copies, or transcriptions made of audio or video tapes, whether in handwriting or typewritten, that
are in the possession, custody or control of Executive or his attorneys, agents,
family members, or other representatives, which are alleged to support in any way any of the
claims Executive has released under this Agreement.
(b) The foregoing representation shall include all Proprietary Information of Company and
Company. With respect to Proprietary Information, Executive warrants, represents, and covenants to
return such Proprietary Information on or before the close of business on February 17, 2006. As
used herein, “Proprietary Information” means information in written form or electronic media,
including but not limited to technical and non-technical data, lists, training manuals, training
systems, computer based training modules, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes and plans regarding Company or its affiliates, clients,
prospective clients, methods of operation, billing rates, billing procedures, suppliers, business
methods, finances, management, or any other business information relating to Company or its
affiliates (whether constituting a trade secret or proprietary or otherwise) which has value to
Company or its affiliates and is treated by Company or its affiliates as being confidential;
provided; however, that Proprietary Information shall not include any information that has been
voluntarily disclosed to the public by Company or its affiliates (except where such public
disclosure has been made without authorization) or that has been independently developed and
disclosed by others, or that otherwise enters the public domain through lawful means. Proprietary
Information does include information which has been disclosed to Company or its affiliates by a
third party and which Company or its affiliates are obligated to treat as confidential.
Proprietary Information may or may not be marked by Company or its affiliates as “proprietary” or
“secret” or with other words or markings of similar meaning, and the failure of Company to make
such notations upon the physical embodiments of any Proprietary Information shall not affect the
status of such information as Proprietary Information.
9. General Provisions.
(a) This Agreement and the covenants, representations, warranties and releases contained
herein shall inure to the benefit of and be binding upon Executive and Company and each of their
respective successors, heirs, assigns, agents, affiliates, parents, subsidiaries and
representatives.
(b) Each party acknowledges that no one has made any representation whatsoever not contained
herein concerning the subject matter hereof to induce the execution of this Agreement. Executive
acknowledges that the consideration for signing this Agreement is a benefit to which Executive
would not have been entitled had Executive not signed this Agreement.
(c) Executive agrees that the terms and conditions of this Agreement, including the
consideration hereunder shall not be disclosed to anyone and shall remain confidential and not
disseminated to any person or entity not a party to this Agreement except to family members, legal
counsel, an accountant for purposes of securing tax advice; the Internal Revenue Service, or the
state taxing agencies.
(d) The “Effective Date” of this Agreement shall be the eighth (8th) day
after the execution of the Agreement by Executive.
(e) This Agreement does not constitute an admission of any liability.
(f) The parties hereto and each of them agrees and acknowledges that if any portion of this
Agreement is declared invalid or unenforceable by a final judgment of any court of competent
jurisdiction, such determination shall not affect the balance of this Agreement, which shall remain
in full force and effect. Any such invalid portion shall be deemed severable.
(g) Neither this Agreement nor any provision hereof may be modified or waived in any way
except by an agreement in writing signed by each of the parties hereto consenting to such
modification or waiver.
(h) This Agreement shall in all respects be interpreted, enforced and governed under the
internal laws (and not the conflicts of laws and rules) of Georgia.
10. Payment of Severance; Outplacement.
(a) The Company shall pay to Executive a total of $360,576.92, payable in twenty-five (25)
equal installments beginning on the first regular bi-weekly payroll date of March 3, 2006, and
continuing through the next twenty-five (25) succeeding regular bi-weekly pay dates of Company.
The total severance payment amount specified in the preceding sentence supersedes and replaces the
severance payment provided for in the Employment Agreement, as amended by the Change of Control
Agreement. The severance payment installments shall be made according to the regular payroll
practices of Company and shall be reduced by any and all deductions for applicable taxes and other
company (if so authorized by Executive) related deductions.
(b) Company will pay the cost for Executive to receive outplacement services offered by
Company’s service provider Executrack. Outplacement must begin within sixty (60) days of
Executive’s termination date, or else this benefit is forfeited by Executive.
11. Release of Claims by Company. As a material inducement to Executive to enter into
this Agreement, Company hereby, on behalf of itself and its successors and assigns, to the fullest
extent permitted by law, absolutely, unconditionally, completely and irrevocably releases, acquits,
discharges, and waives forever and for all purposes Executive from any and all charges, complaints,
claims, promises, agreements, demands, actions or causes of action, suits, damages (including
attorneys’ fees and costs actually incurred), expenses, compensation, penalties, liabilities and
obligations of any kind or nature whatsoever, that any of Company, Parent, or any other subsidiary
of Parent, or any of their respective shareholders, may have, in each such case, of which the
Independent Directors of Parent have actual knowledge as of the date hereof. For purposes hereof,
“Independent Director” means a director of Parent that satisfies the criteria for independence
under the listing standards established by the National Association of Securities Dealers, Inc. as
in effect on the date hereof. Except as specifically provided in this Section 11, Executive’s
obligations under the Change of Control Agreement that under the terms of such agreement survive
Executive’s termination of employment shall also survive
execution and delivery of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Effective
Date.
EXECUTIVE ATTESTS THAT HE UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
NOTICE – THIS AGREEMENT CONTAINS A WAIVER OF RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT.
EXECUTIVE IS ADVISED TO CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT
EXECUTED THIS 10th DAY OF FEBRUARY, 2006.
EXECUTIVE:
|
/s/ Xxxxx X. Xxxxxx, Xx. | |||
| XXXXX X. XXXXXX, XX. |
Sworn to and subscribed before me this 10th day of February, 2006.
/s/ Xxxxx Xxxxxxxx
Notary Public
Notary Public
EXECUTED THIS 20th DAY OF FEBRUARY, 2006.
Company: PRG-XXXXXXX USA, INC.
By: /s/ Xxxxxxxx Xxxxx
Its: SVP Human Resources
EXHIBIT A TO RELEASE AGREEMENT AND COVENANT NOT TO XXX
Company is experiencing a workforce reorganization wherein certain individuals are being
terminated involuntarily and are being offered good and valuable consideration to which they would
not otherwise have been entitled in exchange for the release and other agreements contained herein.
1. A list of the job titles and ages of all employees who were selected for Company’s
involuntary termination program applicable to Executive’s decisional unit is set forth in the table
below.
2. The selection factor for this involuntary termination program relative to the Executive’s
decisional unit, which has been defined as the Chief Financial Officer (CFO) and Chief
Restructuring Officer (CRO) positions reporting to Xxxxx XxXxxxx, CEO: is the company’s need for
financial restructuring expertise. This involuntary termination program will remain open for a
period of 45 days from the presentation of any document constituting a separation agreement and
release of all claims to each individual covered by the program, unless extended by Company in its
sole and absolute discretion.
3. A list of the employees in the same job classification or organizational unit of Company
who were not selected for the program is reflected in the table below by the indication “Not
Selected”.
| Job Title | Age | Selected | Not Selected | |||||||||
Chief Financial Officer |
55 | X | ||||||||||
Chief Restructuring Officer |
40 | X | ||||||||||
