RELEASE AGREEMENT
Exhibit 10.1
THIS RELEASE AGREEMENT (this “Release Agreement”) is entered into between PRG-XXXXXXX
INTERNATIONAL, INC., a Georgia corporation (the “Company”), and XXXXX X. XXXXXXX
(“Executive”).
BACKGROUND:
WHEREAS, Executive, the Company’s Chairman, Chief Executive Officer and President, has
resigned effective as of the close of business on November 30, 2008; and
WHEREAS, the Company and Executive desire to enter into this Release Agreement.
NOW, THEREFORE, for and in consideration of the premises, the mutual promises, covenants and
agreements contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Executive agree as follows:
1. Consideration. This Release Agreement is entered into in consideration of the
agreement by the Company to pay Executive a pro-rated portion of the 2008 annual incentive bonus
Executive would have received had he remained employed until the time of payment of the bonus (the
“Payment”). The amount of the Payment will equal the 2008 annual incentive bonus Executive
would have received had he remained employed pursuant to the Amended and Restated Employment
Agreement between the Company and Executive dated as of December 17, 2007 (the “Employment
Agreement”) multiplied by a fraction, the numerator of which is the number of days in 2008
Executive was employed by the Company and the denominator of which is the number of days in 2008.
The Company will make the Payment, net of applicable tax withholdings, on the first regularly
scheduled bi-weekly payroll date immediately following the earlier of (i) six months after
Executive’s “separation from service” from the Company within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”) or (ii) Executive’s death.
2. Release by Executive. Except as provided in paragraph 3, Executive, for himself
and on behalf of his representatives (including his heirs, executors, administrators and assigns),
hereby RELEASES and FULLY DISCHARGES the Company and its present and former parent companies and
subsidiaries, and the officers, directors, employees, agents, successors and assigns of each of
them (the “Released Parties”) from all claims, rights, and causes of action of all nature,
known or unknown, which he has or may hereafter have, in any way arising out of, connected with or
related to his employment with any of the Released Parties, and the resignation or termination
thereof. This RELEASE shall include, but not be limited to, any cause of action based upon
knowledge obtained by Executive during employment with the Company and any of the Released Parties
and any claims and causes of action for Workers Compensation, medical fees and costs, pain and
suffering, wrongful or constructive discharge, breach of contract, discrimination or retaliation
under any applicable laws or regulations, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Family and Medical Leave Act, the Fair Labor Standards Act, the Americans
with Disabilities Act, the Older Workers Benefits Protection Act (“OWBPA”) and the Age
Discrimination in Employment Act
(the “ADEA”). This RELEASE shall also include all claims, rights and causes of action
for costs, attorney’s fees or commissions which Executive may assert, or which may be asserted by
third parties on Executive’s behalf, against the Company and any of the Released Parties.
Executive agrees that he has not, and shall not, initiate any claim or cause of action,
administrative or legal, related in any way to his employment with any of the Released Parties, the
termination or resignation thereof, any injuries suffered or received during employment with any of
the Released Parties, or that is otherwise included in or covered by this RELEASE, with the
exceptions set forth in paragraph 3, including enforcing the terms of this Release Agreement, and
subsequent receipt by Executive of the Payment specified above.
3. Preserved Rights. The sole matters to which the release and covenants in paragraph
2 of this Release Agreement do not apply are: (i) Executive’s rights under the Employment Agreement
to receive any base salary that has accrued through the termination of Executive’s employment that
remains unpaid, any reimbursable expenses that Executive has incurred that remain unpaid, and any
unexpired and unused paid time off that has accrued under the Company’s paid time-off policy
through the termination of Executive’s employment and to which Executive is entitled to payment,
all of which shall be paid in accordance with the Employment Agreement; (ii) Executive’s rights
under this Release Agreement; (iii) Executive’s rights under the Indemnification Agreement, dated
as of July 25, 2005 between the Company and Executive (the “Indemnification Agreement”),
(iv) Executive’s rights under the Company’s 2006 Management Incentive Plan (the “MIP”) and
Executive’s related performance unit agreement; (v) Executive’s rights of indemnification with
regard to his service as an officer or director of any of the Released Parties, including as set
forth in subparagraph 4(g) of the Employment Agreement and as set forth in the Indemnification
Agreement; (vi) Executive’s rights under any D&O policy maintained by or for the benefit of the
Released Parties or their respective employees, officers or directors at any time during or after
the course of Executive’s employment with any of the Released Parties; (vii) Executive’s rights to
contribution with regard to Executive’s service as an officer and director of the Released Parties;
(viii) acts or omissions occurring or claims by Executive arising after the Effective Date;
(ix) Executive’s rights to any vested accrued benefits under the Released Parties’ employee benefit
plans or under COBRA; (x) any rights that Executive may have to assert an affirmative defense to a
claim by the Released Parties; (xi) Executive’s rights as a shareholder of the Company; or
(xii) any rights or obligations under applicable law that cannot be waived or released pursuant to
an agreement (such rights under subclauses (i)-(xii), “Preserved Rights”). Any claims,
rights, and causes of actions not specifically set forth in this paragraph 3 as Preserved Rights
are forever released and waived pursuant to paragraph 2.
4. Mutual Non-Disparagement. For two years after the Effective Date, Executive and
the Company each agree that none of them will take unnecessary action that is intended, or would
reasonably be expected, to harm any of the others’ reputations or that would reasonably be expected
to lead to unwanted or unfavorable publicity to the others or to the Company’s respective
successors, current or former agents, officers, service providers, or employees in a derogatory
manner, except as required by law or in connection with proceedings relating to the terms of the
Employment Agreement or the Indemnification Agreement. Nothing in this paragraph 4 shall preclude
Executive or the Company from making non-defamatory statements regarding another party hereto.
Provided, however, that the giving of truthful testimony under
oath while subject to a lawful subpoena or court order shall not constitute a violation of
this provision.
5. Right to Consider and Revoke Agreement. The Company has advised Executive that he
has 21 days in which to consider whether to sign this Release Agreement following its presentation
to him by Company. The Company has further advised Executive that if he chooses to sign this
Release Agreement, he then has 7 days following the date on which he signed the Release Agreement
to revoke his acceptance. This Release Agreement will not be effective or binding until this 7-day
period has elapsed without Executive choosing to revoke his acceptance.
6. Effective Date and Revocation. This Release Agreement shall become effective no
sooner than on the eighth day following the date on which Executive executes this Release Agreement
(the “Effective Date”). It is understood that Executive may revoke his approval of this
RELEASE within the seven-day period following the date on which he signs the Release Agreement.
Any revocation during this period must be in writing and delivered to the attention of the General
Counsel of the Company, at the following address: PRG-Xxxxxxx International, Inc., 000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000. Any revocation must be delivered to and received by
the General Counsel of the Company within the seven-day period. In the event of Executive’s
revocation, this Release Agreement, and the obligations recited herein, including the payment
specified above, shall be null and void in accordance with its terms.
7. Executive Acknowledgment. Executive acknowledges that:
(a) Executive has read and understands this Release Agreement and understands fully its final
and binding effect;
(b) None of the Released Parties has made any statements, promises or representations not set
forth in this Release Agreement, and Executive has not relied on any such statements, promises or
representations;
(c) Executive has voluntarily signed this Release Agreement with the knowledge and
understanding and full intention of releasing the Released Parties as set forth above; and
(d) Executive acknowledges that the Company has advised him to consult with an attorney prior
to signing this Release Agreement. Executive further acknowledges that he in fact has sought and
obtained adequate legal counsel with regard to the terms and effect of this Release Agreement.
Executive represents and warrants that he has signed this Agreement of his own free will and
without coercion or duress.
8. Succession and Survival. This Release Agreement is binding upon and shall inure to
the benefits of the parties to this Release Agreement and their respective assigns, successors,
heirs and personal representatives.
9. Severability. Whenever possible, each provision of this Agreement is to be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, that invalidity, illegality or unenforceability is
not to affect any other provision or any other jurisdiction, and this Agreement is to be reformed,
construed and enforced in the jurisdiction as if the invalid, illegal or unenforceable provision
had never been contained herein.
10. Choice of Law. This Release Agreement is to be governed by the internal law, and
not the laws of conflicts, of the State of Georgia.
11. Complete Agreement. This Release Agreement embodies the complete agreement and
understanding between the parties with respect to the subject matter hereof and effective as of its
date supersedes and preempts any prior understandings, agreements or representations by or between
the parties, written or oral, that may have related to the subject matter hereof in any way.
However, all terms and conditions of the Indemnification Agreement and Section 7 of the Employment
Agreement shall remain in full force and effect, in accordance with their terms. In the event a
conflict arises between the terms of the Employment Agreement and/or the Indemnification Agreement
and the terms hereof, the terms hereof shall control.
12. Amendment and Waiver. The provisions of this Release Agreement may be amended or
waived only in a writing signed by an authorized representative of Company and the Executive, and
no course of conduct or failure or delay in enforcing the provisions of this Release Agreement is
to affect the validity, binding effect or enforceability of this Release Agreement.
| PRG-XXXXXXX INTERNATIONAL, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: Xxxxxx X. Xxxxxx | ||||||
| Title: Sr. Vice President & General Counsel | ||||||
| Date: | December 1, 2008 | |||||
| /s/ Xxxxx X. XxXxxxx | ||||||
| Xxxxx X. XxXxxxx | ||||||
| Date: | December 1, 2008 | |||||
