SEPARATION AGREEMENT
Exhibit 10.1
THIS SEPARATION AGREEMENT (this “Agreement”) is made and entered into this 3rd day
of August, 2010, by and between XXXXX XXXXXXXX (“Executive”) and PRGX GLOBAL, INC., a Georgia
corporation formerly known as PRG-Xxxxxxx International, Inc. (“Company”). Executive and Company
are sometimes hereinafter referred to together as the “Parties” and individually as a “Party.”
BACKGROUND:
A. Executive was employed pursuant to an employment agreement between Executive and Company
dated November 28, 2008 (“Employment Agreement”).
B. Executive and Company now mutually desire to end Executive’s employment and terminate the
Employment Agreement effective as of the date hereof.
C. Company and Executive wish to avoid any disputes which could arise under the Employment
Agreement and have therefore compromised any claims or rights they have or may have under the
Employment Agreement by agreeing to the terms of this 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 parties hereto hereby agree as follows:
1. Termination of Employment. The Parties agree that (a) the Employment Agreement is
hereby terminated as of the date hereof, (b) the initial presentation of this Agreement to
Executive on May 17, 2010 constituted written notice of termination of Executive’s employment, and
(c) Executive’s employment relationship with Company shall terminate effective June 16, 2010
(“Termination Date”), and all benefits, privileges and authorities related to Executive’s
employment with Company shall hereby cease, except as otherwise specifically set forth in this
Agreement.
2. No Admission. The Parties agree that their entry into this Agreement is not and
shall not be construed to be an admission of liability or wrongdoing on the part of either Party.
3. Future Cooperation. Executive agrees that, notwithstanding the termination of
Executive’s employment on the Termination Date, Executive upon reasonable notice will make himself
available to Company or its designated representatives for the purposes of: (a) providing
information regarding the projects and files on which Executive worked for the purpose of
transitioning such projects; and (b) providing information regarding any other matter, file,
project and/or client with whom Executive was involved while employed by Company.
4. Consideration.
(a) In consideration for Executive’s agreement to terminate the Employment Agreement, to fully
release Company from any and all Claims as described below, and to perform the other duties and
obligations of Executive contained herein, Company will, subject to ordinary and lawful deductions
and Sections 4(b) and (c) below:
(i) Pay severance to Executive in the form of salary continuation for sixty-eight (68)
weeks immediately following the Termination Date (“Severance Period”). Such payments shall
be made in accordance with Company’s standard pay practices in an amount equal to Sixteen
Thousand One Hundred and Twenty-Five and 73/100 dollars ($16,125.73) per bi-weekly pay
period for 34 pay periods following Executive’s Termination Date, except that no payments
shall be made during the period that begins immediately after the Termination Date and ends
on the earlier of (i) Executive’s death or (ii) six months after the Termination Date. The
payments that would otherwise have been made in such period shall be accumulated and paid in
a lump sum on the first bi-weekly pay period after the end of such period.
(ii) Continue after the Termination Date any health care (medical, dental and vision)
plan coverage, other than under a flexible spending account, provided to Executive at the
Termination Date for the Severance Period, on a monthly or more frequent basis, on the same
basis and at the same cost to Executive as available to similarly-situated active employees
during such Severance Period, provided that such continued coverage shall terminate in the
event Executive becomes eligible for any such coverage under another employer’s plans or any
publicly-funded federal, state, provincial or local healthcare plan or system.
(iii) Pay an amount equal to Executive’s actual earned full-year bonus for 2010, pro
rated based on the number of days Executive was employed in 2010 on and before the
Termination Date, payable at the time Executive’s annual bonus for such year otherwise would
have been paid had Executive continued employment. Payment of a pro rated portion of
Executive’s 2010 bonus hereunder is dependent upon (1) the Company’s achievement of certain
levels of 2010 consolidated Company revenues and adjusted EBITDA established by the
Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”),
(2) the achievement of certain levels of 2010 service line (Recovery Audit — Americas)
revenues and adjusted EBITDA established by the Compensation Committee, and (3) Executive’s
performance with respect to certain individual performance objectives for 2010 approved by
the Compensation Committee.
(iv) Vest in full, effective as of the later of the Termination Date or the date upon
which the revocation period for the Release described in Section 4(b) below expires without
Executive having elected to revoke the Release, Executive’s outstanding unvested options,
restricted stock and other equity-based awards that would have vested based solely on the
continued employment of Executive. Additionally, all of Executive’s outstanding stock
options shall remain outstanding until the earlier of (i) one year after the Termination
Date or (ii) the original expiration date of the options (disregarding any earlier
expiration date provided for in any other agreement, including without limitation
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any related grant agreement, based solely on the termination of the Executive’s
employment).
(v) Pay to executive in cash in a single lump sum an amount equal to Twenty Five
Thousand Dollars ($25,000) subject to applicable taxes and withholdings within fifteen days
after the date upon which the revocation period for the Release described in Section 4(b)
below expires without Executive having elected to revoke the Release.
(b) Notwithstanding anything else contained herein to the contrary, no payments shall be made
or benefits delivered under this Agreement (other than payments required to be made by Company
pursuant to Section 5 below) unless, by August 15, 2010: (i) Executive has signed and delivered to
Company a Release in the form attached hereto as Exhibit A (the “Release”); and (ii) the
applicable revocation period under the Release has expired without Executive having elected to
revoke the Release. Executive agrees and acknowledges that Executive would not be entitled to the
consideration described herein absent execution of the Release. Any payments to be made, or
benefits to be delivered, under this Agreement (other than the payments required to be made by
Company pursuant to Section 5 below and the vesting of outstanding unvested options, restricted
stock and other equity-based awards as set forth in Section 4(a)(iv) above) within the thirty (30)
days after the Termination Date shall be accumulated and paid in a lump sum on the first bi-weekly
pay period occurring more than thirty (30) days after the Termination Date, provided Executive
delivers the signed Release to Company and the revocation period thereunder expires without
Executive having elected to revoke the Release.
(c) As a further condition to receipt of the payments and benefits in Section 4(a) above,
Executive also waives any and all rights to any other amounts payable to him upon the termination
of his employment relationship with Company, other than those specifically set forth in this
Agreement, including without limitation any severance, notice rights, payments, benefits and other
amounts to which Executive may be entitled under the laws of any jurisdiction and/or the Employment
Agreement, and Executive agrees not to pursue or claim any such payments, benefits or rights.
(d) Executive agrees that he will not be entitled to receive after the Termination Date any of
the additional benefits or amounts set forth on Exhibit A of the Employment Agreement that accrue
or relate to periods after the Termination Date. Notwithstanding the foregoing, Executive and
Company agree that the tax equalization benefit described in Exhibit A to the Employment Agreement
survives by its terms beyond the Termination Date, provided that for purposes of such provision the
last year “affected by the assignment” shall be deemed to be 2010. Executive agrees to indemnify
Company and hold Company harmless, to the fullest extent permitted by applicable law, with respect
to any housing, furniture, utilities, insurance, automobile expenses, medical costs (except to the
extent provided in Section 4(a)(ii) above), work permit/visa costs and other costs or amounts that
accrue or relate to periods after the Termination Date, such amounts being Executive’s sole
responsibility after the Termination Date.
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5. Other Benefits.
Nothing in this Agreement or the Release shall:
(a) alter or reduce any vested, accrued benefits (if any) Executive may be entitled to
receive under any 401(k) plan established by Company;
(b) affect Executive’s right (if any) to elect and (subject to Section 4(a)(ii) above)
pay for continuation of Executive’s health insurance coverage under Company’s health plans
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (C.O.B.R.A.), as
amended, and to receive any C.O.B.R.A. subsidy for such coverage that may be available
pursuant to applicable law;
(c) affect Executive’s right (if any) to receive (i) any base salary that has accrued
through the Termination Date and is unpaid, (ii) any reimbursable expenses that Executive
has incurred before the Termination Date but are unpaid and (iii) any unused paid time off
days to which Executive will be entitled to payment, all of which shall be paid as soon as
administratively practicable (and in any event within thirty (30) days) after the
Termination Date;
(d) alter or reduce the vested benefits to which Executive is entitled under Company’s
management incentive plan (“MIP”), which shall be paid in accordance with the MIP and
Executive’s applicable performance unit agreement;
(e) affect Executive’s right to continue to receive his base salary and benefits
through the Termination Date, as in effect as of the date hereof, which base salary and
benefits will continue through the Termination Date, except with respect to any changes in
benefits that are applicable generally to the other executives of Company; or
(f) affect Executive’s right (if any) to receive (i) any additional amounts set forth
on Exhibit A of the Employment Agreement to which Executive may be entitled which have
accrued through the Termination Date and remain unpaid, which amounts will be paid at the
time originally set forth in the Employment Agreement, (ii) any tax equalization benefits to
which Executive may be entitled under the Employment Agreement which shall be paid as set
forth therein, and (iii) tax return preparation assistance from PricewaterhouseCoopers or
another Company-designated firm for the years affected by Executive’s assignment to the
United States through the Termination Date, the cost of which the Company will pay directly.
6. Confidentiality of Agreement Terms. Except as otherwise expressly provided in this
Section 6, Executive agrees that the terms, conditions and amount of consideration set forth in
this Agreement (including the Exhibits hereto) are and shall be deemed to be confidential and
hereafter shall not be disclosed by Executive to any other person or entity. The only disclosures
excepted by this paragraph are (a) as may be required by law; (b) Executive may tell prospective
employers the dates of Executive’s employment, positions held, evaluations received, Executive’s
duties and responsibilities and salary history with Company; (c) Executive
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may disclose the terms and conditions of this Agreement to Executive’s attorneys and tax
advisers; and (d) Executive may disclose the terms of this Agreement to Executive’s spouse, if any;
provided, however, that any spouse, attorney or tax adviser learning about the terms of this
Agreement must be informed about this confidentiality provision, and Executive will be responsible
for any breaches of this confidentiality provision by his spouse, attorneys or tax advisers to the
same extent as if Executive had directly breached this agreement. Executive acknowledges that
Company may be required by law to disclose information about this Agreement and its terms.
7. Definitions. For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) “Business of Company” means services to: (A) identify clients’ erroneous or
improper payments; (B) assist clients in the recovery of monies owed to them as a result of
overpayments and overlooked discounts, rebates, allowances and credits; and (C) assist
clients in the improvement and execution of their procurement and payment processes.
(b) “Confidential Information” means any information about Company and its employees,
customers and/or suppliers which is not generally known outside of Company, which Executive
learned in connection with Executive’s employment with Company, and which would be useful to
competitors or the disclosure of which would be damaging to Company. Confidential
Information includes, but is not limited to: (A) business and employment policies,
marketing methods and the targets of those methods, finances, business plans, promotional
materials and price lists; (B) the terms upon which Company obtains products from its
suppliers and sells services and products to customers; (C) the nature, origin, composition
and development of Company’s services and products; and (D) the manner in which Company
provides products and services to its customers.
(c) “Material Contact” means contact in person, by telephone, or by paper or electronic
correspondence in furtherance of the Business of Company.
(d) “Restricted Territory” means, and is limited to, the geographic area described in
Exhibit B attached hereto. Executive acknowledges and agrees that this is a portion
of the area in which Company does business at the time of the execution of this Agreement,
and in which Executive had responsibility on behalf of Company.
(e) “Trade Secrets” means Confidential Information of Company which meets the
definition of a trade secret under applicable law.
8. Confidentiality. Executive agrees that Executive will not directly or indirectly,
use, copy, disclose, distribute or otherwise make use of on his own behalf or on behalf of any
other person or entity (i) any Confidential Information for a period of five (5) years after the
Termination Date or (ii) any Trade Secret at any time such information constitutes a trade secret
under applicable law.
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9. Non-Competition. Executive agrees that for a period of two (2) years following the
Termination Date, Executive will not, either for himself or on behalf of any other person or
entity, compete with the Business of Company within the Restricted Territory by performing
activities which are the same as or similar to those performed by Executive for Company.
10. Non-Solicitation of Customers. Executive agrees that for a period of two (2)
years following the Termination Date, Executive shall not, directly or indirectly, solicit any
actual or prospective customers of Company with whom Executive had Material Contact, for the
purpose of selling any products or services which compete with the Business of Company.
11. Non-Recruitment of Employees or Contractors. Executive agrees that for a period
of two (2) years following the Termination Date, Executive will not, directly or indirectly,
solicit or attempt to solicit any employee or contractor of Company with whom Executive had
Material Contact, to terminate or lessen such employment or contract.
12. Acknowledgments and Specific Performance.
(a) Executive hereby acknowledges and agrees that the covenants contained in Sections 8
through 11 of this Agreement (collectively the “Restrictive Covenants”) are reasonable as to time,
scope and territory given Company’s and Company’s parent’s and subsidiaries’ need to protect their
business, customer relationships, personnel, Trade Secrets and Confidential Information. For
purposes of the Restrictive Covenants, Company shall refer also to Company’s parent and
subsidiaries as applicable. In the event any of the Restrictive Covenants or any other provisions
in this Agreement shall be determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over too great a geographical area or by
reason of its being too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable and/or over the maximum geographical
area as to which it may be enforceable and/or to the maximum extent in all other respects as to
which it may be enforceable, all as determined by such court in such action, and the invalidity of
any one or more of the Restrictive Covenants or other provisions in this Agreement shall not cause
or render any other of the Restrictive Covenants or provisions in this Agreement to be invalid or
voidable. Executive acknowledges and represents that Executive has substantial experience and
knowledge such that Executive can readily obtain subsequent employment which does not violate this
Agreement.
(b) Executive acknowledges and agrees that any breach of the provisions of the Restrictive
Covenants by him will cause irreparable damage to Company or Company’s parent or subsidiaries, the
exact amount of which will be difficult to determine, and that the remedies at law for any such
breach will be inadequate. Accordingly, Executive agrees that, in addition to any other remedy
that may be available at law, in equity, or hereunder, Company shall be entitled to specific
performance and injunctive relief, without posting bond or other security, to enforce or prevent
any violation of any of the Restrictive Covenants. Additionally, notwithstanding the obligations
within Section 16 of this Agreement respecting the exclusive jurisdiction of the United States
District Court for the Northern District of Georgia and the State and Superior Courts of Xxxx
County, Georgia pertaining to actions arising out of this Agreement, and in addition to the
Company’s right to seek injunctive relief in any state or federal court located in Xxxx County,
Georgia, the parties hereby acknowledge and agree that
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the Company may seek specific performance and injunctive relief in any jurisdiction, court or
forum applicable to Executive’s then current residency in order to prevent or to restrain any
breach by the Executive, or any and all of the Executive’s partners, co-venturers, employers,
employees, or agents, acting directly or indirectly on behalf of or with the Executive, of any of
the provisions of the Restrictive Covenants.
13. Return of all Property and Information of Company. Executive agrees to return all
of Company’s property within seven (7) days following the execution of this Agreement. Such
property includes, but is not limited to, the original and any copy (regardless of the manner in
which it is recorded) of all information provided by Company to Executive or which Executive has
developed or collected in the scope of Executive’s employment related to Company and its parent,
subsidiaries or affiliates as well as all Company-issued equipment, supplies, accessories,
vehicles, keys, instruments, tools, devices, computers (except as described above), cell phones,
pagers, materials, documents, plans, records, notebooks, drawings, or papers. Upon request by
Company, Executive shall certify in writing that Executive has complied with this provision, and
has deleted all Company information from any computers or other electronic storage devices owned by
Executive. Executive may only retain information relating to Executive’s benefit plans and
compensation to the extent needed to prepare Executive’s tax returns.
14. No Harassing or Disparaging Conduct. Executive further agrees and promises that
Executive will not engage in, or induce other persons or entities to engage in, any harassing or
disparaging conduct or negative or derogatory statements directed at or about Company or its
parent, subsidiaries or affiliates, the activities of Company or its parent, subsidiaries or
affiliates, or the Releasees at any time in the future. Notwithstanding the foregoing, this
Section 9 may not be used to penalize Executive for providing truthful testimony under oath in a
judicial or administrative proceeding or complying with an order of a Court or government agency of
competent jurisdiction.
15. References. Following the termination date, Company agrees to give any potential
employers who inquire about Executive’s work history at Company a neutral reference consisting of
Employee’s dates of employment, title and compensation, so long as Executive directs all such
requests to the Company’s Senior Vice President-Human Resources.
16. Construction of Agreement and Venue for Disputes. This Agreement shall be deemed
to have been jointly drafted by the Parties and shall not be construed against either Party. This
Agreement shall be governed by the law of the State of Georgia, and the Parties agree that any
actions arising out of or relating to this Agreement or Executive’s employment with Company must be
brought exclusively in either the United States District Court for the Northern District of
Georgia, or the State or Superior Courts of Xxxx County, Georgia. Notwithstanding the pendency of
any proceeding, either Party shall be entitled to injunctive relief in a state or federal court
located in Xxxx County, Georgia upon a showing of irreparable injury. The Parties consent to
personal jurisdiction and venue solely within these forums and solely in Xxxx County, Georgia and
waive all otherwise possible objections thereto. The prevailing Party shall be entitled to recover
its costs and attorneys fees from the non-prevailing Party in any such proceeding no later than 90
days following the settlement or final resolution of any such proceeding. The existence of any
claim or cause of action by Executive against Company or
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Company’s parent or subsidiaries, including any dispute relating to the termination of
Executive’s employment or under this Agreement, shall not constitute a defense to enforcement of
said covenants by injunction.
17. Severability. If any provision of this Agreement shall be held void, voidable,
invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof,
and accordingly, the remaining provisions of this Agreement shall remain in full force and effect
as though such void, voidable, invalid or inoperative provision had not been contained herein.
18. No Reliance Upon Other Statements. This Agreement is entered into without
reliance upon any statement or representation of any Party hereto or any Party hereby released
other than the statements and representations contained in writing in this Agreement (including all
Exhibits hereto).
19. Entire Agreement. This Agreement, including all Exhibits hereto (which are
incorporated herein by this reference), contains the entire agreement and understanding concerning
the subject matter hereof between the Parties hereto. No waiver, termination or discharge of this
Agreement, or any of the terms or provisions hereof, shall be binding upon either Party hereto
unless confirmed in writing. This Agreement may not be modified or amended, except by a writing
executed by both Parties hereto. No waiver by either Party hereto of any term or provision of this
Agreement or of any default hereunder shall affect such Party’s rights thereafter to enforce such
term or provision or to exercise any right or remedy in the event of any other default, whether or
not similar.
20. Further Assurance. Upon the reasonable request of the other Party, each Party
hereto agrees to take any and all actions, including, without limitation, the execution of
certificates, documents or instruments, necessary or appropriate to give effect to the terms and
conditions set forth in this Agreement.
21. No Assignment. Neither Party may assign this Agreement, in whole or in part,
without the prior written consent of the other Party, and any attempted assignment not in
accordance herewith shall be null and void and of no force or effect.
22. Binding Effect. This Agreement shall be finding on and inure to the benefit of
the Parties and their respective heirs, representatives, successors and permitted assigns.
23. Indemnification. Company understands and agrees that any indemnification
obligations under its governing documents or the indemnification agreement between Company and
Executive with respect to Executive’s service as an officer of Company remain in effect and survive
the termination of Executive’s employment under this Agreement as set forth in such governing
documents or indemnification agreement.
24. Nonqualified Deferred Compensation.
(a) It is intended that any payment or benefit which is provided pursuant to or in connection
with this Agreement which is considered to be deferred compensation subject to Section 409A of the
Code shall be paid and provided in a manner, and at such time and form, as
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complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable
tax consequences provided therein for non-compliance.
(b) Neither Company nor Executive shall take any action to accelerate or delay the payment of
any monies and/or provision of any benefits in any manner which would not be in compliance with
Section 409A of the Code (including any transition or grandfather rules thereunder).
(c) Because Executive is a “specified employee” for purposes of Section 409A(a)(2)(B)(i) of
the Code, any payments to be made or benefits to be delivered in connection with Executive’s
“Separation from Service” (as determined for purposes of Section 409A of the Code) that constitute
deferred compensation subject to Section 409A of the Code shall not be made until the earlier of
(i) Executive’s death or (ii) six months after Executive’s Separation from Service (the “409A
Deferral Period”) as required by Section 409A of the Code. Payments otherwise due to be made in
installments or periodically during the 409A Deferral Period shall be accumulated and paid in a
lump sum as soon as the 409A Deferral Period ends, and the balance of the payment shall be made as
otherwise scheduled. Any such benefits subject to the rule may be provided under the 409A Deferral
Period at Executive’s expense, with Executive having a right to reimbursement from Company once the
409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise
scheduled.
(d) For purposes of this Agreement, all rights to payments and benefits hereunder shall be
treated as rights to receive a series of separate payments and benefits to the fullest extent
allowed by Section 409A of the Code.
(e) Notwithstanding any other provision of this Agreement, neither Company nor its parent,
subsidiaries or affiliates shall be liable to Executive if any payment or benefit which is to be
provided pursuant to this Agreement and which is considered deferred compensation subject to
Section 409A of the Code otherwise fails to comply with, or be exempt from, the requirements of
Section 409A of the Code.
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IN WITNESS WHEREOF, the Parties have executed, or caused their duly authorized representatives
to execute, this Agreement as of the day and year first above written.
| “Executive” |
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| /s/ Xxxxx Xxxxxxxx | ||||
| Xxxxx Xxxxxxxx | ||||
| “Company” PRGX GLOBAL, INC. |
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| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Title: Senior Vice President — Human Resources | ||||
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