EXHIBIT 99.2
RETAINER AGREEMENT
This Retainer Agreement (this "Agreement") is entered into as of July __,
2005 (the "Effective Date") between PRG-XXXXXXX INTERNATIONAL, INC., a Georgia
corporation ("PRGX"), and XXXXX X. XXXX ("Director").
The Board of Directors of PRGX (the "Board") has appointed Director to the
position of Non-Executive Chairman of the Board ("Non-Executive Chairman"), and
Director has accepted such appointment, subject to the terms and conditions set
forth in this Agreement.
Therefore, the parties agree as follows:
1. Term. Director shall serve as Non-Executive Chairman for the period
beginning on the Effective Date and ending as provided in paragraph 6 (the
"Appointment Period").
2. Position and Duties.
(a) During the Appointment Period, Director shall serve as Non-Executive
Chairman and shall have the normal duties, responsibilities and authority of a
non-employee director serving in such position.
(b) During the Appointment Period, Director shall:
(i) regularly attend and preside at PRGX shareholders' meetings and Board
meetings;
(ii) serve on and preside over appropriate committees as reasonably
requested by the Board (including, subject to the Board's affirmative
determination of Director's "independence" as defined by the listing standards
of the NASDAQ National Market, all standing committees of the Board other than
the audit committee);
(iii) set meeting schedules;
(iv) establish meeting agendas (in consultation with PRGX's Chief Executive
Officer (the "CEO"));
(v) set and establish agendas for regularly scheduled executive sessions of
the non-employee and independent members of the Board;
(vi) lead the Board in the exercise of its corporate oversight functions,
including assignment of specific tasks to Board committees or individual members
of the Board;
(vii) manage information flow to the Board to facilitate appropriate
understanding of and discussion regarding matters of interest or concern to the
Board;
(viii) be available to PRGX at mutually convenient times and places;
(ix) attend external meetings and presentations (as appropriate and
convenient);
(x) perform such duties, services and responsibilities and have the
authority commensurate to the position of Non-Executive Chairman; and
(xi) advise the CEO regarding the corporate strategy and business plan of
PRGX and its divisions and subsidiaries, including efforts to improve the
operating and financial performance of PRGX and its divisions and subsidiaries
and efforts to develop and grow PRGX's business.
PRGX and Director agree that final approval of the business plan and corporate
strategy of PRGX rest with the full Board, it being understood that Director is
authorized and expected to have a leading and active role in these matters
independent of the Board and to organize and lead the Board in discussing and
deciding these issues.
(c) Director acknowledges that the duties described in this paragraph 2 are
expected to require Director's commitment of the equivalent of two days per week
of Director's business time and attention during the first six months of the
Appointment Period, one to two days per week during the second six months of the
Appointment Period, and one day per week thereafter during the Appointment
Period. Director further acknowledges that these duties may, at times, require
more or less than the time commitment described in the immediately preceding
sentence.
(d) Director shall continue to be bound by PRGX's Code of Conduct,
including provisions thereof regarding conflicts of interest, to the extent
applicable to non-employee directors.
3. Status. Director's status during the Appointment Period shall not, for
any purpose, be that of an employee or agent of PRGX with authority to bind PRGX
in any respect. As Non-Executive Chairman, Director shall not be entitled to
participate in any employee benefit plans of PRGX or receive other benefits of
employment available to employees of PRGX.
4. Remuneration.
(a) Retainer Fee. On the Effective Date, PRGX shall pay Director an initial
cash retainer fee of $42,000. Thereafter, during the Appointment Period, PRGX
shall pay Director a cash retainer fee, payable monthly, as follows: (i) for the
period commencing on August 1, 2005 through December 31, 2005, PRGX shall pay
Director a cash retainer fee of $42,000 per month; (ii) for the period
commencing January 1, 2006 through June 30, 2006, PRGX shall pay Director a cash
retainer fee of $16,000 per month; and (iii) for the period commencing July 1,
2006 through the end of the Appointment Period, PRGX shall pay Director a cash
retainer fee of $12,500 per month. The retainer fee payable for any month in
which Director serves as Non-Executive Chairman for less than the entire month
(other than July 2005) will be prorated based on the number of days during such
month in which Director served as Non-Executive Chairman. The retainer fee
payable for any month (other than July 2005) shall be payable in advance not
later than the first day of such month.
(b) Stock Options. In connection with Director's appointment to the
position of Non-Executive Chairman, PRGX shall grant Director, at the earliest
practicable date in accordance with PRGX's policies governing trading in PRGX's
common stock, a stock option with respect to 450,000 shares of the common stock
of PRGX, in accordance with a stock option agreement in the form attached hereto
as Exhibit A.
(c) Expense Reimbursement. PRGX will reimburse Director for all reasonable
expenses incurred by Director during the Appointment Period in the course of
performing Director's duties under this Agreement with respect to travel,
entertainment and other business expenses, consistent with PRGX's reimbursement
of non-employee directors generally and subject to PRGX's requirements
applicable generally with respect to reporting and documentation of such
expenses.
(d) No Regular Director's Retainer Fee. The retainer fee payable pursuant
to subparagraph 4(a) is in lieu of any regular directors' retainer and
attendance fees otherwise payable to members of the Board (or any committee
thereof) generally. Upon cessation of service by Director as Non-Executive
Chairman, Director shall be eligible, so long as Director serves as a member of
the Board, to receive any regular directors' retainer and attendance fees
otherwise payable to members of the Board (or any committee thereof).
5. Indemnification. Director shall continue to be entitled to
indemnification from PRGX, through PRGX's articles of incorporation and bylaws,
on the same basis as the other non-employee members of the Board, and shall
continue to receive insurance coverage under any directors' and officers'
liability insurance policy obtained by PRGX and in effect from time to time, on
the same basis as other non-employee members of the Board. Contemporaneously
with this Agreement, PRGX and Director shall execute an indemnification
agreement in the form attached hereto as Exhibit B.
6. Appointment Period. The Appointment Period shall terminate on the
earlier of (i) the date of PRGX's 2008 annual meeting of shareholders; (ii) the
date Director's service as Non-Executive Chairman terminates for any reason; or
(iii) the date Director's membership on the Board terminates for any reason.
7. Non-Solicitation of Employees.
(a) Agreement Not to Solicit Employees. Director acknowledges and agrees
that in the performance of Director's duties to PRGX during the Appointment
Period, Director will be brought into contact with PRGX's existing and potential
employees. Director further understands and agrees that the foregoing makes it
necessary, for the protection of the business of PRGX and any direct and
indirect subsidiary, parent, affiliate, or related company of PRGX (such
entities, the "Related Entities"), and Director hereby agrees that during the
Appointment Period and for a period of two years from the date that the
Appointment Period terminates, Director shall not, without PRGX's prior written
consent, directly or indirectly, on Director's own behalf or in the service or
on behalf of others, solicit, divert or recruit any PRGX employee or employee of
any of the Related Entities to leave such employment, whether such employment is
by written contract or at will.
(b) Remedies.
(i) By virtue of the duties and responsibilities attendant to Director's
retention by PRGX and the special knowledge of PRGX's affairs, business,
clients, and operations that Director has and will have as a consequence of
Director's service as Non-Executive Chairman, Director acknowledges and agrees
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that irreparable loss and damage will be suffered by PRGX if Director should
breach or violate the covenant contained in subparagraph 7(a). Therefore, in
addition to any other remedies available to PRGX, Director acknowledges and
agrees that PRGX shall be entitled to an injunction to prevent a breach or
contemplated breach by Director of such covenant.
(ii) The existence of any claim, demand, action or cause of action of
Director against PRGX, whether predicated upon this Agreement or otherwise, is
not to constitute a defense to PRGX's enforcement of the covenant contained in
subparagraph 7(a).
(c) Indirect Solicitation. Director will be in violation of this paragraph
7 if Director engages in the prohibited activity set forth in subparagraph 7(a)
directly as an individual on Director's own account, or indirectly as a partner,
joint venturer, employee, agent, salesperson, consultant, officer and/or
director of any firm, association, partnership, corporation or other entity, or
as a shareholder of any corporation or the owner of the interests in any other
entity, in which Director or Director's spouse, child or parent owns, directly
or indirectly, individually or in the aggregate, more than 5% of the outstanding
stock or other ownership interests.
(d) Extension. If a court of competent jurisdiction finally determines that
Director has violated any of Director's obligations under this paragraph 7, then
the period applicable to those obligations is to automatically be extended by a
period of time equal in length to the period during which those violations
occurred.
8. Director Representations. Director represents to PRGX that (a) the
execution, delivery and performance of this Agreement by Director does not and
will not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Director is a party or
by which Director is bound, (b) Director is not a party to or bound by any
employment agreement, noncompete agreement or confidentiality agreement with any
other person or entity except as would not have an adverse effect on the
business of PRGX or its affiliates, and (c) upon the execution and delivery of
this Agreement by PRGX, this Agreement will be the valid and binding obligation
of Director, enforceable in accordance with its terms.
9. No Withholding of Taxes. The parties acknowledge that any remuneration
provided by this Agreement represents non-employee revenue to Director for
services rendered by Director as Non-Executive Chairman and, to the extent
consistent with applicable law, PRGX shall not withhold any amounts from such
remuneration as federal income tax withholding from wages or as employee
contributions under the Federal Insurance Contributions Act or any other
federal, state or local laws. Director acknowledges that Director shall be
responsible for the payment of any federal, state or local taxes resulting from
such remuneration.
10. Expenses. Promptly following receipt of invoices therefor, PRGX will
reimburse Director for Director's reasonable professional fees and costs (and
related disbursements) incurred in connection with Director's negotiation and
execution of this Agreement, in an amount not to exceed $15,000. Except as
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provided for in the immediately preceding sentence, each party shall pay his or
its own expenses incurred in connection with this Agreement.
11. Successors and Assigns. This Agreement is to bind and inure to the
benefit of and be enforceable by Director, PRGX and their respective heirs,
executors, personal representatives, successors and assigns, except that neither
party may assign any rights or delegate any obligations hereunder without the
prior written consent of the other party. Director hereby consents to the
assignment by PRGX of all of its rights and obligations under this Agreement to
any successor to PRGX by merger or consolidation or purchase of all or
substantially all of PRGX's assets, provided that the transferee or successor
assumes PRGX's liabilities under this Agreement.
12. Survival. Subject to any limits on applicability contained therein,
paragraph 7 will survive and continue in full force in accordance with its terms
notwithstanding any termination of the Appointment Period.
13. Choice of Law. This Agreement is to be governed by the internal law,
and not the laws of conflicts, of the State of Georgia.
14. 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.
15. Notices. Any notice provided for in this Agreement is to be in writing
and is to be either personally delivered, sent by reputable overnight carrier or
mailed by first class mail, return receipt requested, to the recipient at the
address indicated as follows:
Notices to Director:
Xxxxx X. Xxxx
00 Xxxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Notices to PRGX:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or any other address or to the attention of any other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement is to be deemed to have been given when so
delivered, sent or mailed.
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16. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only with the prior written consent of PRGX and Director, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement is to affect the validity, binding effect or enforceability of this
Agreement.
17. Complete Agreement. This Agreement, together with the agreements
referred to herein, embody 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.
18. Counterparts. This Agreement may be executed in separate counterparts,
each of which are to be deemed to be an original and both of which taken
together are to constitute one and the same agreement.
[ SIGNATURE PAGE TO FOLLOW ]
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The parties are signing this Agreement as of the date stated in the
introductory clause.
PRG-XXXXXXX INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
---------------------------------------
Xxxxx X. Xxxx
[ Signature Page to Employment Agreement ]
EXHIBIT A
OPTION AGREEMENT
OPTION AGREEMENT
This Option Agreement (this "Option Agreement") is entered into as of
________ __, 2005 between PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation
("PRGX") and XXXXX X. XXXX ("Director").
PRGX and Director are parties to a retainer agreement dated of even date
herewith (the "Retainer Agreement").
In connection with the appointment of Director to the position of
non-executive chairman of the board of directors of PRGX (the "Non-Executive
Chairman") and in accordance with subparagraph 4(b) of the Retainer Agreement,
Director is to receive a stock option grant with respect to 450,000 shares of
the common stock, no par value per share, of PRGX (the "Common Stock").
Therefore, the parties agree as follows:
1. Grant of Non-Qualified Stock Option. PRGX hereby grants to Director the
right and option to purchase from PRGX, on the terms and subject to the
conditions set forth in this Option Agreement, 450,000 shares of Common Stock
(such shares, the "Option Shares"; such option, the "Option"). The date of grant
of the Option (the "Grant Date") is ________ __, 2005. THE OPTION IS NOT TO
CONSTITUTE AN INCENTIVE STOCK OPTION WITHIN THE MEANING OF SECTION 422 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. Of the 450,000 Option Shares, 150,000
Option Shares are time-vested Option Shares (the "Time-Vested Option Shares")
and 300,000 Option Shares are performance-based Option Shares (the
"Performance-Based Option Shares").
2. Plan Terms Govern. The Option granted pursuant to this Option Agreement
is granted subject to the terms and conditions set forth in the PRG-Xxxxxxx
International, Inc. Stock Incentive Plan (as amended from time to time, the
"Plan"), a copy of which has been delivered to Director. All terms and
conditions of the Plan are hereby incorporated into this Option Agreement by
reference and shall be deemed to be a part of this Option Agreement, without
regard to whether such terms and conditions (including, for example, provisions
relating to certain changes in capitalization of PRGX) are otherwise set forth
in this Option Agreement. In the event that there is any inconsistency between
the provisions of this Option Agreement and of the Plan, the provisions of the
Plan shall govern.
3. Exercise Price of the Option. The exercise price for the Option Shares
is $_______ per share, the closing price of the Common Stock on the NASDAQ
National Market on the Grant Date (the "Exercise Price").
4. Vesting of the Option. Subject to the earlier expiration or termination
of this Option in accordance with its terms, the Option Shares granted under
this Option Agreement will be exercisable as follows:
(a) Time-Vested Option Shares. The Time-Vested Option Shares will become
exercisable on the 2006 Relevant Date, subject to subparagraph 4(d) and
conditioned upon Director's membership on the board of directors of PRGX (the
"Board") as of that date. For purposes of this Option Agreement, the "2006
Relevant Date" means the date that is the earlier of the date of the PRGX 2006
annual meeting of shareholders and June 30, 2006; the "2007 Relevant Date" means
the date that is the earlier of the date of the PRGX 2007 annual meeting of
shareholders and June 30, 2007; and the "2008 Relevant Date" means the date that
is the earlier of the date of the PRGX 2008 annual meeting of shareholders and
June 30, 2008.
(b) Performance-Based Option Shares. Subject to subparagraphs 4(c) and
4(d), and subject to Director's continued membership on the Board, the
Performance-Based Option Shares will become exercisable in three Tiers, as
follows:
(1) 100,000 Performance-Based Option Shares will become exercisable upon
attainment by PRGX, at any time following the 2006 Relevant Date (but prior
to termination or expiration of this Option pursuant to Section 7), of a
Market Price (as defined below) per share of the Common Stock of not less
than $4.50 per share for 45 consecutive trading days ("Tier 1");
(2) 100,000 Performance-Based Option Shares will become exercisable upon
attainment by PRGX, at any time following the 2006 Relevant Date (but prior
to termination or expiration of this Option pursuant to Section 7), of a
Market Price per share of the Common Stock of not less than $6.50 per share
for 45 consecutive trading days ("Tier 2"); and
(3) 100,000 Performance-Based Option Shares will become exercisable upon
attainment by PRGX, at any time following the 2007 Relevant Date (but prior
to termination or expiration of this Option pursuant to Section 7), of a
Market Price per share of the Common Stock of not less than $8.00 per share
for 45 consecutive trading days ("Tier 3"),
($4.50 per share, $6.50 per share and $8.00 per share being referred to herein
as the "Price Target" for Tier 1, Tier 2 and Tier 3, respectively). For purposes
of this Option Agreement, "Market Price" means with respect to shares of Common
Stock the daily closing price as reported by the NASDAQ National Market, or
national securities exchange on which shares of Common Stock are then listed
(or, if shares of Common Stock are not then quoted on the NASDAQ National Market
or listed on a national securities exchange, the daily closing price reported in
the over-the-counter market).
(c) Discretionary Acceleration of Exercisability. The Compensation
Committee of the Board (the "Compensation Committee") (excluding Director, if he
is then serving on such committee) may, at the direction of the Nominating and
Corporate Governance Committee of the Board (excluding Director, if he is then
serving on such committee), except as provided in subparagraph 4(d), accelerate
the exercisability of all or a portion of the Performance-Based Option Shares
without regard to whether the requirements for exercisability thereof in
subparagraph 4(b) have been met.
(d) Mandatory Acceleration of Exercisability.
(i) On the 2007 Relevant Date, (A) if the Price Target for Tier 1 has been
exceeded for 45 consecutive trading days, but the Price Target for Tier 2 has
not been achieved or exceeded for 45 consecutive trading days, the Option shall
automatically become exercisable for a number of shares included in Tier 2 equal
2
to 100,000 multiplied by the quotient of dividing (1) the result of subtracting
4.50 from the highest Market Price achieved by the Common Stock for forty-five
consecutive trading days at any time after the Grant Date by (2) 2.00; and (B)
if the Price Target for Tier 2 has been exceeded for 45 consecutive trading
days, but the Price Target for Tier 3 has not been achieved or exceeded for 45
consecutive trading days, the Option shall automatically become exercisable for
a number of shares included in Tier 3 equal to 100,000 multiplied by the
quotient of dividing (1) the result of subtracting 6.50 from the highest Market
Price achieved by the Common Stock for forty-five consecutive trading days at
any time after the Grant Date by (2) 1.50. An acceleration of vesting pursuant
to this subparagraph 4(d)(i) shall not prevent vesting (without duplication)
pursuant to subparagraph 4(b) upon satisfaction of the Price Target conditions
set forth therein.
(ii) In the event Director's membership on the Board terminates due to
Director's death or Disability (as defined in subparagraph 4(d)(iv)), (A) with
respect to the Time-Vested Option Shares, the Option shall automatically become
exercisable for a number of Time-Vested Option Shares equal to 150,000
multiplied by the quotient of dividing (1) the actual number of days after the
Grant Date that Director served as a member of the Board by (2) 365 (the "2006
Quotient"); and (B) with respect to the Performance-Based Option Shares, (1) if
the Price Target for Tier 1 has been achieved for 45 consecutive trading days,
but termination of Director's membership on the Board occurs prior to the date
that is 45 trading days after the 2006 Relevant Date, the Option shall
automatically become exercisable for a number of shares included in Tier 1 equal
to 100,000 multiplied by the 2006 Quotient, (2) if the Price Target for Tier 2
has been achieved for 45 consecutive trading days, but termination of Director's
membership on the Board occurs prior to the date that is 45 trading days after
the 2006 Relevant Date, the Option shall automatically become exercisable for a
number of shares included in Tier 2 equal to 100,000 multiplied by the 2006
Quotient, and (3) if the Price Target for Tier 3 has been achieved for 45
consecutive trading days, but termination of Director's membership on the Board
occurs prior to the date that is 45 trading days after the 2007 Relevant Date,
the Option shall automatically become exercisable for a number of shares
included in Tier 3 equal to 100,000 multiplied by the quotient of dividing (x)
the actual number of days after the Grant Date that Director served as a member
of the Board by (y) 730.
(iii) Upon a Change in Control (as defined in subparagraph 4(d)(iv)) or if
PRGX ceases to be a public company with reporting obligations under the
Securities Exchange Act of 1934, as amended, (A) the Option will automatically
become exercisable with respect to all Time-Vested Option Shares; (B) the Option
will automatically become exercisable with respect to all Performance-Based
Option Shares included in a Tier for which the applicable Price Target is
exceeded by the Transaction Price (as defined in subparagraph 4(d)(iv)); and (C)
(1) if the Transaction Price exceeds the Price Target for Tier 1 but is less
than the Price Target for Tier 2, the Option shall automatically become
exercisable for a number of shares included in Tier 2 equal to 100,000
multiplied by the quotient of dividing (x) the result of subtracting 4.50 from
the Transaction Price by (y) 2; and (2) if the Transaction Price exceeds the
Price Target for Tier 2 but is less than the Price Target for Tier 3, the Option
shall automatically become exercisable for a number of shares included in Tier 3
equal to 100,000 multiplied by the quotient of dividing (x) the result of
subtracting 6.50 from the Transaction Price by (y) 1.50.
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(iv) For purposes of this Option Agreement:
(A) "Disability" means Director's inability or expected inability (or a
combination of both) to perform the duties of Non-Executive Chairman described
in the Retainer Agreement due to an illness, accident or any other physical or
mental incapacity for an aggregate of 90 days within any period of 180
consecutive days during which the Retainer Agreement is in effect, as determined
in good faith by the Board (excluding Director);
(B) "Change in Control" means the occurrence of any of the following
events: (i) the acquisition of beneficial ownership of a majority of the
outstanding voting stock of PRGX by any person (other than PRGX, a subsidiary of
PRGX or any person that, on the date of this Option Agreement, beneficially
owned not less than four million shares of the common stock of PRGX) or any two
or more persons (other than persons that, on the date of this Option Agreement,
beneficially owned not less than four million shares of the common stock of
PRGX) acting as a partnership, limited partnership, syndicate or other group,
entity or association acting in concert for the purpose of voting, acquiring,
holding, or disposing of voting stock of PRGX; at any time during any period of
two consecutive years (not including any period prior to the date of this Option
Agreement, individuals who at the beginning of such period constituted the
Board, and any new directors, whose election by the Board or nomination for
election by the holders of the voting stock of PRGX was approved by a vote of at
least two-thirds of the directors of PRGX then still in office who either were
directors of PRGX at the beginning of the period or whose election or nomination
for election was previously so approved (the "Current Directors"), cease for any
reason to constitute a majority thereof, (iii) a merger or a consolidation of
PRGX with or into another corporation or entity, other than (A) a merger or
consolidation with a subsidiary of PRGX, or (B) a merger or consolidation in
which the holders of voting stock of PRGX immediately before the merger hold as
a class immediately after the merger at least a majority of all outstanding
voting power of the surviving or resulting corporation or its parent, the
Current Directors constitute at least a majority of the board of directors of
such surviving or resulting corporation or its parent, and such surviving or
resulting corporation or its parent expressly assume and agree to perform the
obligations of the PRGX under this Option Agreement; (iv) a statutory exchange
of shares of one or more classes or series of outstanding voting stock of PRGX
for cash, securities, or other property, other than an exchange in which the
holders of voting stock of PRGX immediately before the exchange hold as a class
immediately after the exchange at least a majority of all outstanding voting
power of the entity with which PRGX stock is being exchanged, the Current
Directors constitute at least a majority of the board of directors of such
entity, and such entity expressly assumes and agrees to perform the obligations
of the PRGX under this Option Agreement; (v) the sale or other disposition of
all or substantially all of the assets of PRGX, in one transaction or a series
of transactions, other than a sale or disposition in which the holders of voting
stock of PRGX immediately before the sale or disposition hold as a class
immediately after the exchange at least a majority of all outstanding voting
power of the entity to which the assets of PRGX are being sold, the Current
Directors constitute at least a majority of the board of directors of such
entity, and such entity expressly assumes and agrees to perform the obligations
of the PRGX under this Option Agreement; or (vi) the liquidation or dissolution
of PRGX; and
(C) "Transaction Price" means the per-share price consideration for the
Common Stock payable to PRGX's public shareholders in connection with the
transaction resulting in, as applicable, (i) the Change in Control or (ii) PRGX
ceasing to be a public company with reporting obligations under the Securities
Exchange Act of 1934, as amended, or, in the case of clause (ii), if there is no
transaction, the Market Price on the last trading day preceding such event. For
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purposes of determining the Transaction Price, any non-cash consideration to be
received by PRGX's public shareholders will be valued by the Compensation
Committee (excluding Director, if he is then serving on such committee), in good
faith.
(v) Except as otherwise provided in subparagraphs 4(c), 4(d)(ii) and
4(d)(iii), upon termination of Director's membership on the Board, no additional
Option Shares shall become exercisable.
5. Method of Exercise of Option.
(a) To the extent then exercisable, Director may exercise the Option in
whole or in part; except that no single exercise of the Option is to be for less
than 100 Option Shares, unless at the time of the exercise, the maximum number
of Option Shares available for purchase under the Option is less than 100 Option
Shares. In no event is the Option to be exercised for a fractional share of
Common Stock.
(b) To exercise the Option, Director shall give written notice to PRGX
stating the number of shares for which the Option is being exercised and the
intended manner of payment. The date of this notice shall be the exercise date.
The notice must be accompanied by payment in full of the aggregate Exercise
Price, either by cash, check, note or any other instrument acceptable to the
Compensation Committee (excluding Director, if he is then serving on such
committee). Payment in full or in part may also be made in the form of shares of
Common Stock already owned by Director based, in each case, on the Market Price
of the shares of Common Stock on the date the Option is exercised; except that
in no event is payment in full or in part for the exercise of an Option to be
made with any Option Shares that, as of the date of exercise of the Option, have
been owned by Director less than six months. If the payment is in the form of
shares of Common Stock, then the certificate or certificates representing the
those shares must be duly executed in blank by Director or must be accompanied
by a stock power duly executed in blank suitable for purposes of transferring
those shares to PRGX. Fractional shares of Common Stock will not be accepted in
payment of the purchase price of Option Shares. PRGX shall not issue Option
Shares until full payment for them has been made.
(c) As soon as practicable upon PRGX's receipt of Director's notice of
exercise and payment, PRGX shall direct the due issuance of the shares so
purchased.
(d) As a further condition precedent to the exercise of this Option in
whole or in part, Director shall comply with all regulations and the
requirements of any regulatory authority having control of, or supervision over,
the issuance of the shares of Common Stock and accordingly shall execute any
documents that the Board (excluding Director), in its sole discretion, deems
necessary or advisable to effect such compliance.
(e) In the case of Director's death, the Option, to the extent exercisable,
may be exercised by the executor or administrator of Director's estate or by any
person or persons who have acquired the Option directly from Director by bequest
or inheritance.
6. Non-Transferability of Options. Director shall not assign or transfer
the Option, other than by will or the laws of descent and distribution. During
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Director's lifetime, only Director (or, in the event of legal incapacity or
incompetency, Director's guardian or legal representative) may exercise the
Option.
7. Termination of Option.
(a) On the date Director's membership on the Board terminates for any
reason, any portion of the Option not then exercisable (after taking into
account the provisions of subparagraphs 4(c)and 4(d)) shall terminate
automatically and without further notice at the close of business on such date.
(b) This Option Agreement and any exercisable portion of the Option not
already exercised will terminate automatically and without further notice at the
close of business on the earlier of: (i) the seventh anniversary of the Grant
Date and (ii)(A) if Director's service as Non-Executive Chairman terminates
prior to the 2006 Relevant Date, the date that is the number of days after
cessation of Director's membership on the Board equal to 15 multiplied by the
number of months (rounded to the nearest month) Director serves as Non-Executive
Chairman; (B) if Director's service as Non-Executive Chairman terminates on or
after the 2006 Relevant Date, but prior to the 2007 Relevant Date, the date that
is the first anniversary of the termination of Director's membership on the
Board; (C) if Director's service as Non-Executive Chairman terminates on or
after the 2007 Relevant Date, but prior to the 2008 Relevant Date, the date that
is 18 months after the date of the termination of Director's membership on the
Board; or (D) if Director's service as Non-Executive Chairman terminates on or
after the 2008 Relevant Date, the date that is the second anniversary of the
termination of Director's membership on the Board.
(c) In no event may the Option be exercised, in whole or in part, after
termination pursuant to subparagraphs 7(a) or 7(b).
8. Acknowledgment of Receipt of Plan Materials. PRGX has provided to
Director, and Director hereby acknowledges receipt of, concurrent with execution
of this Option Agreement, a copy of the Plan, a copy of the prospectus
summarizing the Plan, and a copy of PRGX's 2004 annual report to shareholders.
9. Interpretation of this Option Agreement. All decisions and
interpretations made by the Board (excluding Director) or the Compensation
Committee (excluding Director, if he is then serving on such committee)with
regard to any question arising under this Option Agreement will be binding and
conclusive on PRGX and Director and any other person entitled to exercise the
Option as provided for in this Option Agreement.
10. Choice of Law. This Option Agreement is to be governed by the internal
law, and not the laws of conflicts, of the State of Georgia.
11. Successors and Assigns. Subject to paragraph 6, this Option Agreement
is to bind and inure to the benefit of and be enforceable by Director, PRGX and
their respective heirs, executors, personal representatives, successors and
assigns.
12. Notices. Any notice provided for in this Option Agreement must be in
writing and is to be either personally delivered, sent by reputable overnight
carrier or mailed by first class mail, return receipt requested, to the
recipient at the address indicated as follows:
6
Notices to Director:
Xxxxx X. Xxxx
00 Xxxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Notices to PRGX:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or any other address or to the attention of any other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Option Agreement will be deemed to have been given when so
delivered, sent or mailed.
13. Severability. Whenever possible, each provision of this Option
Agreement is to be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Option Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any particular jurisdiction, that invalidity, illegality or
unenforceability is not to affect any other provision or any other jurisdiction,
and this Option Agreement shall be reformed, construed and enforced in the
particular jurisdiction as if the invalid, illegal or unenforceable provision
had never been contained herein.
14. Complete Agreement. This Option 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.
15. Amendment and Waiver. Subject to the next sentence, the provisions of
this Option Agreement may be amended or waived only with the prior written
consent of PRGX and Director, and no course of conduct or failure or delay in
enforcing the provisions of this Option Agreement is to affect the validity,
binding effect or enforceability of this Option Agreement. PRGX unilaterally may
waive any provision of this Option Agreement in writing to the extent that the
waiver does not adversely affect the interests of Director under this Option
Agreement, but the waiver is not to operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision of
this Option Agreement.
[ SIGNATURE PAGE TO FOLLOW ]
7
The parties are signing this Option Agreement as of the date stated in the
introductory clause.
PRG-XXXXXXX INTERNATIONAL, INC.
By:
------------------------------------
Name:
Title:
---------------------------------------
Xxxxx X. Xxxx
[ Signature Page to Option Agreement ]
EXHIBIT B
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is entered into as of
July __, 2005, between PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation
(the "Corporation"), and XXXXX X. XXXX (the "Indemnitee").
Indemnitee is the non-executive chairman of the board of directors and a
director of the Corporation, and in such capacity is performing a valuable
service for the Corporation.
Indemnitee is willing to serve, continue to serve, and take on additional
service for or on behalf of the Corporation on the condition that he be
indemnified as herein provided.
It is intended that Indemnitee shall be paid promptly by the Corporation
all amounts necessary to effectuate in full the indemnity provided herein.
Therefore the parties agree as follows:
1. Certain Definitions.
(a) References to the "Corporation" shall include any corporation which is
a parent corporation or a subsidiary corporation with respect to PRG-Xxxxxxx
International, Inc. within the meaning of Section 425(e) or (f) of the Internal
Revenue Code of 1986, as amended, and shall also include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Agreement
with respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
(b) "Disinterested Director" shall mean a director of the Corporation who
is not a party to the Proceeding in respect of which indemnification is being
sought by Indemnitee.
(c) "Expenses" shall mean all direct and indirect costs (including, without
limitation, attorneys' fees, retainers, court costs, costs of bonds,
transcripts, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or out-of-pocket expenses) actually and reasonably
incurred in connection with a Proceeding or establishing or enforcing a right to
indemnification under this Agreement, applicable law or otherwise; provided,
however, that "Expenses" shall not include any Liabilities.
(d) "Indemnification Period" shall mean the period of time during which
Indemnitee has served and shall continue to serve as a director of the
Corporation, and thereafter so long as Indemnitee shall be subject to any
possible Proceeding arising out of acts or omissions of Indemnitee as a director
or as an officer of the Corporation.
(e) "Liabilities" shall mean liabilities of any type whatsoever including,
but not limited to, any judgments, fines, ERISA excise taxes and penalties,
penalties and amounts paid or obligated to be paid in settlement (including all
interest assessments and other charges paid or payable in connection with or in
respect of such judgments, fines, penalties or amounts paid in settlement and
any sums paid in respect of any deductible under any policies of directors' and
officers' liability insurance) of any Proceeding.
(f) "Nonreimbursable Liability" shall mean any expenses or liability
incurred in a proceeding in which Indemnitee is adjudged liable, in a final and
non-appealable judgment, to the Corporation or is subjected to injunctive relief
in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(iii) for the types of liability set forth in Georgia Business Corporation
Code Section 14-2-832; and
(iv) for any transaction from which he received an improper personal
benefit.
(g) "Proceeding" shall mean any threatened, pending or completed action,
claim, suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative, arbitrative or investigative, whether formal or informal,
including any appeal therefrom.
(h) For purposes of this Agreement, references to "other enterprises" shall
include employee benefit plans and trusts; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan or trust, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan or trust shall be deemed to have acted in a manner
"not opposed to the best interests of the Corporation" as referred to in this
Agreement.
2. Services by Indemnitee. Indemnitee agrees to serve as a director and/or
officer of the Corporation so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the Articles of
Incorporation and By-laws of the Corporation (as each may be amended from time
to time) or any subsidiary of the Corporation and until such time as he resigns
or fails to stand for election or is removed from his position. Indemnitee may
at any time and for any reason resign or be removed from such position (subject
to any other contractual obligation or other obligation imposed by operation of
law), in which event the Corporation shall have no obligation under this
Agreement to continue Indemnitee in any such position.
2
3. Indemnification.
(a) The Corporation shall indemnify Indemnitee, to the fullest extent
permitted by applicable law, whenever he is or was a party or is threatened to
be made a party to any Proceeding, including without limitation any such
Proceeding brought by or in the right of the Corporation, because he is or was
the non-executive chairman of the board of directors or a director of the
Corporation or is or was serving at the request of the Corporation as a
director, manager, officer, employee, agent, trustee or plan fiduciary of
another corporation, partnership, limited liability company, joint venture,
trust or other enterprise, or because of anything done or not done by Indemnitee
in such capacity, against Expenses and Liabilities (including the costs of any
investigation, defense, settlement or appeal) actually and reasonably incurred
by Indemnitee or on his behalf in connection with such Proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. The
foregoing notwithstanding, in no event shall the Corporation indemnify
Indemnitee against any Nonreimbursable Liability.
(b) Without in any way limiting the foregoing, to the extent that
Indemnitee has been successful on the merits or otherwise in defense of any
Proceeding, he shall be indemnified against Expenses and Liabilities actually
and reasonably incurred by him in connection therewith.
4. Mandatory Advancement of Expenses. The Corporation shall advance to
Indemnitee from time to time all reasonable Expenses incurred by or on behalf of
Indemnitee within fifteen (15) days after the Corporation's receipt of a written
request for an advance of Expenses by Indemnitee, whether prior to or after
final disposition of a Proceeding. The written request for an advancement of any
and all Expenses under this Section shall contain reasonable detail of the
Expenses incurred by Indemnitee. The foregoing notwithstanding, the Corporation
shall not be obligated to advance Expenses hereunder unless it shall have
received from Indemnitee (a) a written affirmation of Indemnitee's good faith
belief that his conduct did not constitute behavior which could result in
Nonreimbursable Liability and (b) a written undertaking to repay any advances if
it is ultimately determined that he is not entitled to indemnification pursuant
to this Agreement.
5. Limitations. The foregoing indemnity and advancement of Expenses shall
apply only to the extent that Indemnitee has not been indemnified and reimbursed
pursuant to such insurance as the Corporation may maintain for Indemnitee's
benefit or pursuant to the Articles of Incorporation or Bylaws of the
Corporation (as each may be amended from time to time); provided, however, that
notwithstanding the availability of such other indemnification and reimbursement
pursuant to such Corporation-maintained policies, Indemnitee may, with the
Corporation's consent, claim indemnification and advancement of Expenses
3
pursuant to this Agreement by assigning Indemnitee's claims under such insurance
to the Corporation to the extent Indemnitee is paid by the Corporation.
6. Insurance. The Corporation may, but is not obligated to, purchase and
maintain insurance to protect itself and/or Indemnitee against Expenses and
Liabilities in connection with Proceedings to the fullest extent permitted by
applicable laws. The Corporation may, but is not obligated to, create a trust
fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as may be
necessary to effect indemnification or advancement of Expenses as provided in
this Agreement.
7. Procedure for Determination of Entitlement to Indemnification.
(a) Whenever Indemnitee believes that he is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification to the Corporation. Any request for indemnification shall
include sufficient documentation or information reasonably available to
Indemnitee to support his claim for indemnification. Indemnitee shall submit
such claim for indemnification within a reasonable time not to exceed three
years after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, final
termination or other disposition or partial disposition of any Proceeding,
whichever is the latest event for which Indemnitee requests indemnification. If
a determination is required by the Corporation that Indemnitee is entitled to
Indemnification, and the Corporation fails to respond within sixty (60) days of
such request, the Corporation shall be deemed to have approved the request. Any
indemnification or advance of expenses which is due and payable to Indemnitee
shall be made promptly and in any event within thirty (30) days after the
determination that Indemnitee is entitled to such amounts.
(b) If such a determination is required, the Indemnitee shall be entitled
to select the forum in which Indemnitee's request for indemnification will be
heard, which selection shall be included in the written request for
indemnification required in Section 7(a). The forum shall be any one of the
following:
(i) The shareholders of the Corporation; or
(ii) A majority vote of the Board of Directors consisting of Disinterested
Directors (even though less than a quorum); provided, however, that if there are
no Disinterested Directors, or if the Disinterested Directors so direct, the
determination shall be made by independent legal counsel in a written opinion.
If Indemnitee fails to make such designation, his claim shall be determined
by an appropriate court of the State of Georgia or a federal court located in
the State of Georgia.
8. Fees and Expenses of Counsel. The Corporation agrees to pay the
reasonable fees and expenses of independent legal counsel should such counsel be
retained to make a determination of Indemnitee's entitlement to indemnification
pursuant to Section 7 of this Agreement.
4
9. Remedies of Indemnitee.
(a) In the event that (i) a determination pursuant to Section 7 hereof is
made that Indemnitee is not entitled to indemnification, (ii) advances of
Expenses are not made pursuant to this Agreement for any reason, (iii) payment
has not been timely made following a determination of entitlement to
indemnification pursuant to this Agreement, or (iv) Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication of his rights in an appropriate court. The Corporation shall not
oppose Indemnitee's right to seek any such adjudication.
(b) In the event that a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 7
hereof, the decision in the judicial proceeding provided in paragraph (a) of
this Section 9 shall be made de novo and Indemnitee shall not be prejudiced by
reason of a determination that he is not entitled to indemnification.
(c) If a determination that Indemnitee is entitled to indemnification has
been made pursuant to Section 7 hereof or otherwise pursuant to the terms of
this Agreement, the Corporation shall be bound by such determination in the
absence of (i) misrepresentation of a material fact by Indemnitee or (ii) a
specific finding (which has become final) by an appropriate court that all or
any part of such indemnification is expressly prohibited by law.
(d) In any court proceeding pursuant to this Section 9, the Corporation
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. The Corporation shall
stipulate in any such court that the Corporation is bound by all the provisions
of this Agreement and is precluded from making any assertion to the contrary.
10. Modification, Waiver, Termination and Cancellation. No supplement,
modification, termination, cancellation or amendment of this Agreement shall be
binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver.
11. Notice by Indemnitee and Defense of Claim. Indemnitee shall promptly
notify the Corporation in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter, whether civil, criminal, administrative, arbitrative or investigative,
but the omission to so notify the Corporation will not relieve it from any
liability which it may have to Indemnitee if such omission does not prejudice
the Corporation's rights. If such omission does prejudice the Corporation's
rights, the Corporation will be relieved from liability only to the extent of
such prejudice. With respect to any Proceeding as to which Indemnitee notifies
the Corporation of the commencement thereof:
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) The Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel reasonably
satisfactory to Indemnitee; provided, however, that the Corporation shall not be
entitled to assume the defense of any Proceeding if Indemnitee shall have
5
reasonably concluded that there may be a conflict of interest between the
Corporation and Indemnitee with respect to such Proceeding. After notice from
the Corporation to Indemnitee of its election to assume the defense thereof, the
Corporation will not be liable to Indemnitee under this Agreement for any
Expenses subsequently incurred by Indemnitee in connection with the defense
thereof, other than reasonable costs of investigation or as otherwise provided
below. Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at the expense
of Indemnitee unless:
(i) The employment of counsel by Indemnitee has been authorized by the
Corporation;
(ii) Indemnitee shall have reasonably concluded that counsel engaged by the
Corporation may not adequately represent Indemnitee;
(iii) The Corporation shall not in fact have employed counsel to assume the
defense in such Proceeding or shall not in fact have assumed such defense and be
acting in connection therewith with reasonable diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation shall not settle any Proceeding in any manner which
would impose any penalty, liability, obligation or limitation on Indemnitee
without Indemnitee's written consent; provided, however, that Indemnitee will
not unreasonably withhold his consent to any proposed settlement.
12. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be sent by Federal Express or other
overnight or same day courier service providing a return receipt (and shall be
effective when received or when refused, as evidenced on the return receipt) to
the following addresses:
To Corporation:
PRG-Xxxxxxx International, Inc.
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
To Indemnitee:
Xxxxx X. Xxxx
00 Xxxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
13. Nonexclusivity. The rights of Indemnitee hereunder shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled under the Georgia Business Corporation Code, the Corporation's Articles
6
of Incorporation or By-Laws (as each may be amended from time to time), or any
agreements, vote of shareholders, resolution of the Board of Directors or
otherwise, except that the parties hereby declare that the Indemnification
Agreement, dated February 26, 2003, between the Indemnitee and the Corporation
(the "2003 Agreement") is hereby terminated and such agreement is to have no
further effect. The provisions of this Agreement are hereby deemed to be a
contract right between the Corporation and the Indemnitee and any repeal of the
relevant provisions of the General Corporation law of the State of Georgia, or
other applicable law, shall not affect this Agreement or its enforceability.
14. Binding Effect, Duration and Scope of Agreement. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including any direct or
indirect successor, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Corporation), heirs and
personal and legal representatives. This Agreement shall continue in effect
during the Indemnification Period, regardless of whether Indemnitee continues to
serve as a director or as an officer.
15. Severability. If any provision or provisions of this Agreement (or any
portion thereof) shall be held to be invalid, illegal or unenforceable for any
reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby; and
(b) to the fullest extent legally possible, the provisions of this
Agreement shall be construed so as to give effect to the intent of any provision
held invalid, illegal or unenforceable.
16. Governing Law and Interpretation of Agreement. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia, as applied to contracts between Georgia residents entered into and
to be performed entirely within Georgia. If the laws of the State of Georgia are
hereafter amended to permit the Corporation to provide broader indemnification
rights than said laws permitted the Corporation to provide prior to such
amendment, the rights of indemnification and advancement of expenses conferred
by this Agreement shall automatically be broadened to the fullest extent
permitted by the laws of the State of Georgia, as so amended.
17. Entire Agreement. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understandings between the parties hereto with respect to the subject matter of
this Agreement (including the 2003 Agreement), except as specifically referred
to herein or as provided in Section 13 hereof.
18. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
Expenses, judgments, fines or penalties actually and reasonably incurred by him
in the investigation, defense, appeal or settlement of any Proceeding but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses, judgments, fines or penalties to
which Indemnitee is entitled.
7
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.
[ SIGNATURE PAGE TO FOLLOW ]
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
PRG-XXXXXXX INTERNATIONAL, INC.
By:
-----------------------------------
Name:
Title:
---------------------------------------
Xxxxx X. Xxxx
[ Signature Page to Indemnification Agreement ]
