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EXHIBIT 10.2
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Separation Agreement") is entered into this
January 31, 2001, by and among SCOTT L. COLABUONO ("Colabuono") and THE PROFIT
RECOVERY GROUP INTERNATIONAL, INC., a Georgia corporation ("PRG").
W I T N E S S E T H
WHEREAS, Colabuono has served as Executive Vice President - Finance,
Chief Financial Officer and Treasurer of PRG and as an officer of subsidiaries
and affiliates of PRG and resigned voluntarily from employment with PRG on
October 25, 2000; and
WHEREAS, PRG is willing to accept Colabuono's resignation as an
officer; and
WHEREAS, PRG and Colabuono desire to settle fully and finally all
differences which may arise out of or relate to Colabuono's employment with PRG
and all other claims Colabuono has through the date of this Separation Agreement
against PRG and terminate the employment relationship between Colabuono and PRG
and all agreements, other than this Separation Agreement, relating to such
employment relationship.
NOW THEREFORE, in consideration of the promises undertaken and releases
herein contained, it is agreed by the parties hereto, as follows:
1. TERMINATION OF EMPLOYMENT; TERMINATION BENEFITS
A. Termination of Employment. PRG and Colabuono hereby agree that
Colabuono's employment by PRG and any and all of the subsidiaries of PRG is
terminated effective as of October 25, 2000. Except for PRG's obligation to
indemnify Colabuono as provided herein and the obligations of Colabuono
contained in the July 19, 1999 Employee Agreement with PRG, which obligations
remain in full force and effect, and except as otherwise specifically provided
in this Separation Agreement, any and all agreements between Colabuono and PRG
relating to employment, compensation, stock options, stock awards and any other
benefits are hereby terminated and cancelled.
B. Resignation from Offices and Board of Directors. Colabuono
hereby confirms that he has resigned from all positions he may have had as an
officer and director of PRG and of all subsidiaries and affiliates of PRG,
effective October 25, 2000.
C. Termination Benefits. PRG and Colabuono agree that Colabuono
shall be entitled to receive the following, severance payments and rights, which
collectively are the sole termination benefits to which he is entitled
(collectively, items (i), (ii) and (iii) below being the "Termination
Benefits"):
(i) Commencing February 1, 2001, PRG shall pay Colabuono
an aggregate of $680,625, payable in eighteen (18) equal monthly
installments (without interest), on the last pay date each month, in
accordance with PRG's customary payroll practices and subject to all
applicable federal and state tax withholding and other deductions;
provided, that in the event that prior to the end of such
eighteen-month period either (a) any person or group of affiliated
persons who, immediately prior to any transaction hereinafter
described,
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did not own 5% or more of the issued and outstanding shares of common
stock of PRG, acquire beneficial ownership (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended), in
a transaction or series of transactions, shares of common stock of PRG
which represent more than 50% of all issued and outstanding shares of
common stock of PRG (other than (A) in a transaction in which PRG has
issued the shares of its common stock to such person or group of
affiliated persons or (B) acquisitions which are not effected with the
purpose of accomplishing a change in control of PRG, as evidenced in
the Schedule 13D or Schedule 13G filed by such person or group of
affiliated persons); (b) PRG shall consolidate or merge or participate
in a share exchange with any other individual, partnership,
association, group (as such term is used in Rule 13d under the
Securities Exchange Act, as such Rule is in effect on the date of this
Agreement), corporation or other entity (hereinafter "Person") other
than PRG (or one or more of its wholly-owned subsidiaries) if, at the
time of the consolidation, merger or share exchange or at the time PRG
enters into any agreement with respect to any such consolidation,
merger or share exchange, such other Person (or an affiliate or
associate thereof) is entitled to elect a majority of the Board of
Directors of PRG or if John Cook does not continue as the CEO of PRG;
or (c) PRG sells all or substantially all of its assets to an unrelated
third party in a transaction or series of related transactions, then
any unpaid amounts under this Section 1.C(i) shall be immediately due
and payable.
(ii) In addition, PRG shall pay Colabuono on January 31,
2001 a one-time lump-sum payment of $301,041 (less the aggregate
amount, if any, of payments made by PRG to Colabuono during the period
from October 25, 2000 until January 31, 2001 as advances on such
lump-sum payment or otherwise) in full, final and complete satisfaction
of any salary, bonus, deferred compensation, stock options, stock
purchase, fringe benefits or other employee benefits for which
Colabuono may have been eligible as an employee or officer of PRG.
(iii) PRG agrees that it will reimburse Colabuono for all
amounts has paid to purchase shares of PRG common stock under the PRG
Employee Stock Purchase Plan. Colabuono agrees that any and all stock
awards or grants of PRG Common Stock and any and all options to
purchase shares of PRG common stock, whether or not vested, are hereby
cancelled.
(iv) PRG agrees that Colabuono may retain the cell phone
and the lap-top computer provided by PRG that he currently uses;
provided that he first deliver the computer and, to the extent
applicable, the cell phone to PRG for removal of all Confidential
Information (as defined herein) and all software programs owned by or
licensed to PRG thereon.
(v) PRG will provide Colabuono with a separate
notification about his rights under COBRA to elect to continue group
insurance benefits for a specified period.
(vi) Appropriate election forms for distribution or
rollover of Colabuono's balance under the PRG 401(k) plan will be
provided by the Plan Administrator in accordance with the PRG 401(k)
plan.
(vii) PRG will assign to Colabuono, to the extent
assignable, at Colabuono's request, all insurance policies owned by PRG
on the life of Colabuono, and Colabuono will assume all obligations
thereunder.
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2. GENERAL RELEASE. In consideration of the Termination Benefits provided
to Colabuono by PRG and the promises contained in this Separation Agreement,
Colabuono, for himself and for his successors, assigns, dependents, heirs,
legatees, executors, administrators, and personal and legal representatives,
hereby forever irrevocably and unconditionally grants to PRG this general
release, acquits, remises, and discharges PRG and its present and former
officers, directors, stockholders, employees, agents, representatives,
attorneys, insurers, corporate affiliates, divisions, subsidiaries, related
companies and entities, controlling persons, predecessors, successors, and
assigns (the "Released Parties") from any claims, demands, complaints, causes of
action, suits, damages, costs, losses, debts, expenses, contracts, charges,
controversies, obligations, liabilities, promises, or agreements whatsoever, in
law or in equity, whether known or unknown, fixed or contingent, which Colabuono
has had or may now have against any of the Released Parties arising from or
connected with any matter whatsoever, including without limitation, his
employment with PRG, the termination of that employment or, except for the
Termination Benefits or as otherwise specifically provided herein, any
post-termination severance, salary, bonus, deferred compensation, stock options,
stock awards, auto allowance, fringe benefits or other employee benefits for
which Colabuono was eligible as an employee, officer or director of PRG and any
subsidiary or affiliate thereof, but specifically excluding whatever rights
Colabuono might have to indemnification or payment of expenses arising under
PRG's charter or bylaws or those of any subsidiary or affiliate of PRG
(collectively, the "Claims"). Such Claims shall include, but not be limited to,
any claims, demands, suits or causes of action (i) in connection with any
privacy right, civil rights claim, claim for emotional or mental distress,
claims of defamation, claims for personal injury, claims for breach of contract,
and claims for harassment or (ii) pursuant to any federal or state securities
laws or regulations, federal, state, or local employment laws, regulations,
executive orders, or other requirements, including without limitation those that
may relate to sex, race, or other forms of discrimination. In addition,
Colabuono releases, remises, waives and discharges each of the Released Parties
of and from any claims upon which he may have a right to recover in any lawsuit
brought by any other person on Colabuono's behalf or which includes Colabuono in
any class.
Without limiting the generality of the foregoing, Colabuono hereby
acknowledges and covenants that he has knowingly relinquished and forever
released any and all rights and remedies which might otherwise be available to
him against any of the Released Parties under federal and state employment laws
regarding his employment with PRG, including the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. ss. 621, et seq., the Civil Rights
Act of 1964, as amended (including amendments made through the Civil Rights Act
of 1991), 42 U.S.C. ss. 2000e et seq., 42 U.S.C. ss. 1981, as amended, the
Americans With Disabilities Act, as amended, 42 U.S.C. ss. 12101, et seq., the
Rehabilitation Act of 1973, as amended, 29 U.S.C. ss. 701 et seq., the Employee
Retirement Income Security Act of 1974, as amended, 29 U.S.C. ss. 031 et seq.,
the Worker Adjustment and Retraining Notification Act, 29 U.S.C. ss. 2101, et
seq., the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. ss. 2601
et seq., the Fair Labor Standards Act, as amended, 29 U.S.C. ss. 201 et seq.,
and all Georgia Code provisions, state and federal workers' compensation laws,
and any claims for attorneys' fees under federal, state or local laws.
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By signing at the space indicated below, Colabuono acknowledges that he
has carefully read this general release and affirms that it constitutes a
general release of all known and unknown Claims against the Released Parties.
/s/ Scott L. Colabuono
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Scott L. Colabuono
3. COVENANT NOT TO SUE; NON-COOPERATION PROVISION. Colabuono agrees that
he will not directly or indirectly institute, solicit, encourage, consult or
advise, or in any way participate in the commencement and/or prosecution of any
administrative proceeding or lawsuit against any of the Released Parties in
regard to the Claims released herein or any other claims or causes of action
arising from acts or omissions taken or made prior to the date of this
Separation Agreement. Colabuono further agrees that he will not either directly
or indirectly assist in, cooperate or consult with, or encourage any other
parties or their attorneys to commence or prosecute any present or future
administrative proceeding or lawsuit against PRG or any of the Released Parties.
4. DUTY TO COOPERATE. Colabuono agrees that he will cooperate with and
provide assistance to PRG and its attorneys in connection with any and all
investigations, inquiries or litigation whether in any judicial, administrative,
or public, quasi-public or private forum, in which PRG is involved, whether or
not Colabuono is a defendant in such investigations, inquiries, proceedings or
litigation. Such cooperation and assistance shall consist of, inter alia,
meeting with counsel for PRG on a reasonable schedule and providing background
information to counsel in such meetings, providing truthful testimony in any
proceeding, and providing other support and cooperation as PRG may reasonably
request in connection with such proceedings. PRG agrees that any such requests
will be made to the extent possible with adequate advance notice and in a manner
that does not interfere with any subsequent employment that Colabuono procures.
Colabuono agrees that all such cooperation will be without any additional
payment to him, except that PRG shall reimburse Colabuono for direct
out-of-pocket expenses, if any, incurred by him in connection with such
cooperation.
5. NO DISPARAGEMENT. Colabuono agrees that he will neither say, write nor
communicate in any manner to any person or entity anything derogatory or
negative about PRG and its officers, directors, employees, affiliates, and
representatives, and any of its practices, policies, services or products,
regardless of the truth or falsity of the information. PRG agrees that it and
its officers, directors, employees, affiliates and representatives will also
refrain from stating, writing, or communicating in any manner to any person or
entity anything derogatory or negative about Colabuono. Further, when called for
a reference or other inquiry by a potential employer of Colabuono, PRG, its
officers, directors, employees, affiliates and representatives will speak
positively about Colabuono's performance and relationship while employed by PRG,
in terms and substance similar to that provided on Exhibit "A" attached to this
Agreement. Additionally, PRG shall either communicate this requirement to its
officers, directors, employees, affiliates, and representatives, or
alternatively PRG shall communicate to them to direct all calls for reference or
other inquiry to the designated PRG individual(s) and that everyone else should
not speak further on this subject.
6. CONFIDENTIAL INFORMATION. As used in this Separation Agreement, the
term "Confidential Information" shall mean all information regarding PRG, PRG's
activities, PRG's businesses including, but not limited to, PRG's accounting and
other business procedures or PRG's
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customers that is not generally known to persons not employed by PRG, that is
not generally disclosed by PRG to persons not employed by PRG, and that is the
subject of reasonable efforts to protect its confidentiality. "Trade Secrets"
shall mean information defined as a trade secret by the Georgia Trade Secrets
Act.
(a) Colabuono understands and agrees that the Confidential
Information and Trade Secrets constitute valuable assets of PRG and its
affiliated entities, and should not be disclosed to any third parties without
express permission from PRG. Colabuono hereby represents and warrants that he
has not revealed, divulged or disclosed to any third parties not affiliated with
PRG any Confidential Information or Trade Secrets that he may have become aware
of over the course of his employment with PRG and/or in the process of
discussing the terms of his departure with PRG. Colabuono further agrees that he
shall not, directly or indirectly, at any time in future, reveal, divulge, or
disclose to any person, not expressly authorized by PRG, any Confidential
Information and/or Trade Secrets.
(b) Colabuono understands and agrees that he remain bound by the
restrictive covenants contained in his Employee Agreement dated July 19, 1999,
with PRG.
7. OTHER REPRESENTATIONS. Colabuono represents and warrants to PRG as
follows:
(a) that from October 25, 2000, through the date of execution of
this Separation Agreement, he has not acted in any manner that, after the date
of execution of this Separation Agreement, would be a violation of the terms of
the Separation Agreement;
(b) that he has not made any false statements or
misrepresentations in connection with this Separation Agreement, that he has not
assigned or transferred to any person or entity not a party to this Separation
Agreement any Claim or other right released hereunder and that he shall defend,
indemnify, and hold harmless PRG from and against any claim (including the
payment of attorneys fees and costs actually incurred whether or not litigation
has commenced) based on or in connection with or arising out of any such
assignment or transfer made by Colabuono;
(c) that he has not, prior to the date and time of his execution
of this Separation Agreement, initiated any lawsuit or any administrative
proceedings against PRG with any governmental agency or any court;
(d) that the consideration he is receiving under this Separation
Agreement is valuable consideration to which he would not otherwise be entitled;
and
(e) that, in accordance with Colabuono's existing and continuing
obligations to PRG, except for the cellular telephone and lap top computer which
he may retain pursuant to Section 1C hereof, he has returned or will immediately
return to PRG all property and equipment of PRG in his possession, control or
custody, including, without limitation, any of the following: pager(s), calling
card(s), corporate credit card(s), office key(s), security card(s), all files,
records, documents, correspondence, data, computer access codes, computer
programs, business plans and other property which he prepared or helped prepare
in connection with his employment by PRG, and Colabuono will not retain any
copies or reproductions of any such property and equipment of PRG.
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8. INDEMNIFICATION BY PRG. PRG agrees that it will continue to provide
indemnification to Colabuono to the fullest extent permissible under PRG's
charter and bylaws and the charter and bylaws of any subsidiary of PRG and in
accordance with applicable law.
9. REMEDIES. PRG agrees that immediately upon the finding of a breach, as
set forth below, by it or any of its officers, directors, employees, affiliates,
and representatives of any of the terms and provisions of this Separation
Agreement, Colabuono is immediately thereby relieved of all of his obligations
hereunder. Colabuono agrees that immediately upon the finding of a breach, as
set forth below, by him of any of the terms and provisions of this Separation
Agreement, PRG is immediately thereby relieved of all of its obligations
hereunder. A "finding of a breach" shall be made by a third party who is
unrelated to the parties to this Separation Agreement in an acceptable forum. An
"acceptable forum" shall be a court of competent jurisdiction or the American
Arbitration Association in Atlanta, Georgia, in which all parties have an
opportunity to participate.
If either party is unsuccessful in any challenge to the terms of this
Separation Agreement, or to the Separation Agreement as a whole, that party
acknowledges and agrees that it will be fully responsible for any expenses or
damages incurred by the other party, including court costs and reasonable
attorney's fees, arising as a result of the challenge.
In the event either party (the "Breaching Party") breaches or threatens
to commit a breach of any of the provisions of this Separation Agreement, the
other party (the "Enforcing Party") shall have the right to enjoin,
preliminarily and permanently, the Breaching Party from violating or threatening
to violate this Separation Agreement and to have this Separation Agreement
specifically enforced by any court of competent jurisdiction due to the
irreparable injury to the Enforcing Party such a breach would cause. PRG shall
not have any rights to withhold the Termination Benefits described herein absent
a finding of breach, as defined above.
In no event shall PRG have the right to withhold the Termination
Benefits described herein absent a finding of breach, as defined above.
All rights and remedies defined under this Section 9 shall be in
addition to, and not in lieu of, any other rights and remedies available to
either party at law or in equity.
By execution of this Separation Agreement, Colabuono hereby waives any
breaches by PRG or any of its officers, directors, and employees of any of the
terms hereof from October 25, 2000, to the date hereof.
10. NO ADMISSION. This Separation Agreement shall not be construed as an
admission by PRG of any liability, or any acts of wrongdoing, or the violation
of any federal, state or local law, ordinance or regulation, nor shall it be
considered as evidence of any such alleged liability, wrongdoing, or violation
of any federal, state or local law, ordinance or regulation.
11. CONFIDENTIALITY OF SEPARATION AGREEMENT. The nature and terms of this
Separation Agreement are strictly confidential and shall not be disclosed by
Colabuono at any time to any person other than his lawyer and accountants
without the prior written consent of PRG, except as necessary in any legal
proceedings brought to enforce the provisions and terms of this Separation
Agreement, to prepare and file income tax returns, or pursuant to court order
after a notice to PRG. If either PRG or Colabuono are asked about the
termination of the relationship by parties outside
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PRG's group of employees and agents who have a legitimate business reason to
know of the terms hereof, they will respond that Colabuono voluntarily resigned.
12. GOVERNING LAW. This Separation Agreement is made and entered into in
the State of Georgia and will in all material respects be interpreted, enforced,
and governed under the laws of said state. The provisions of this Separation
Agreement are severable, and if any part of the Separation Agreement is found to
be unenforceable or invalid, the remainder of the Separation Agreement shall not
in any way be affected or impaired and those provisions will continue to be
valid and effective.
13. NO OTHER CONSIDERATION. Colabuono affirms that the only consideration
received by Colabuono for entering into this Separation Agreement is as stated
herein, and that no other promise, representation or agreement of any kind
whatsoever has been made to, or relied upon by, Colabuono in connection with
Colabuono's execution of this Separation Agreement. Colabuono further
acknowledges that he has read the entire Separation Agreement and fully
understands the meaning and intent of the Separation Agreement, including, but
not limited to, its final and binding effect in relation to the general release
of all claims. Colabuono acknowledges that pursuant to the terms of this
Separation Agreement he is not entitled to any other payments, compensation, or
fringe benefits of any kind whatsoever after the date of this Separation
Agreement.
14. CONSULTATION WITH ATTORNEY. Colabuono further acknowledges that he has
been advised by PRG to consult with an attorney in connection with this
Separation Agreement. Colabuono further acknowledges that he was given the
opportunity to take at least twenty-one (21) days from the time he first
received this Separation Agreement within which to consider whether to sign it.
Additionally, Colabuono acknowledges that he will have seven (7) days from the
date of the execution of this Separation Agreement by Colabuono within which to
change his mind and revoke the Separation Agreement, upon which event the
payments and other obligations of PRG will cease. Colabuono acknowledges and
agrees that any revocation of this Separation Agreement must be made in writing
and delivered within the seven 7-day revocation period to:
The Profit Recovery Group International, Inc.
Attn: Clinton McKellar, Jr.
2300 Windy Ridge Parkway, Suite 100 N
Atlanta, Georgia 30339-8426
Colabuono further acknowledges that the effective date of this Separation
Agreement will be the eighth (8th) day after it has been executed by Colabuono.
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15. MERGER AND INTEGRATION. It is expressly understood and agreed that this
Separation Agreement constitutes a full and final settlement and general release
of all Claims. This Separation Agreement, therefore, supersedes and extinguishes
any and all other promises, representations or agreements, whether written or
oral, made at any time prior to the date of this Separation Agreement by and
between the parties or any of their current and former officers, directors,
stockholders, partners, principals, employees, agents, parent corporations,
subsidiaries, affiliates, predecessors, estates, successors, assigns, and
attorneys regarding the resolution of the Claims. The parties agree that, except
with respect to any charter, bylaw or other agreement which provides
indemnification obligations to Colabuono and which PRG has agreed to extend to
Colabuono in accordance with Section 9 hereof, this Separation Agreement
contains the entire agreement between the parties with respect to the Claims and
that the terms of this Separation Agreement are contractual and not mere
recitals. This Separation Agreement may not be changed, modified, amended or
altered except by written agreement signed by all parties hereto.
16. KNOWING EXECUTION. Colabuono warrants, represents, and acknowledges
that this Separation Agreement is entered into by Colabuono KNOWINGLY AND
VOLUNTARILY as an act of Colabuono's OWN FREE WILL; that Colabuono is of sound
mind; that Colabuono is laboring under no physical, psychological, or mental
infirmity which would affect his capacity either to understand the terms of this
Separation Agreement or to freely enter into and be bound by the provisions of
this Separation Agreement.
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I HAVE PERSONALLY READ THE FOREGOING AGREEMENT, AND I AM VOLUNTARILY AND
KNOWINGLY ENTERING INTO THE TERMS AND PROVISIONS CONTAINED IN IT, WITH FULL
UNDERSTANDING OF ITS CONSEQUENCES.
COLABUONO
/s/ SCOTT L. COLABUONO
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SCOTT L. COLABUONO
Date: January 31, 2001
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PRG
THE PROFIT RECOVERY GROUP INTERNATIONAL, INC.
By: /s/ MARIE A. NEFF
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Title: S.V.P. HUMAN RESOURCES
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Date: February 2, 2001
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ACKNOWLEDGEMENT OF
KNOWING AND VOLUNTARY EXECUTION BEFORE EXPIRATION OF
MANDATORY TWENTY-ONE DAY CONSIDERATION PERIOD
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED
I, SCOTT L. COLABUONO, understand that I may take a minimum of twenty-one (21)
days within which to consider and execute the above Separation Agreement.
However, I acknowledge, represent and warrant that I have had sufficient time to
review and consider this Separation Agreement, and I have freely and voluntarily
chosen to execute the said Separation Agreement before the twenty-one (21) day
period has expired. I further acknowledge that I have been advised by THE PROFIT
RECOVERY GROUP INTERNATIONAL, INC. to consult an attorney prior to executing
this acknowledgement below.
Date: JANUARY 31, 2001 /s/ SCOTT L. COLABUONO
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SCOTT L. COLABUONO
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EXHIBIT A
Colabuono is a highly effective senior management executive with cross
functional, multi industry experience in general and financial management. He
is skilled in developing strategy, executing business plans and enhancing
profitable operating results in competitive global markets. He has a high
impact leadership style in driving organizational change and launching major
business initiatives in support of business and financial objectives. He is
recognized for strong analytical skills, innovative thinking and sound business
judgment. He has held senior positions in GTE, Sprint, Burger King Worldwide,
Norrell, Jack Nicklaus companies as well as Profit Recovery Group.
While he is accomplished as a financial executive, his next logical career step
is general management and we were not able to fulfill his career aspirations at
PRG at this time.
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