EXHIBIT 10.43
AMENDMENT TO EMPLOYMENT AGREEMENT AND RESTRICTIVE COVENANT AGREEMENT
This Amendment to Employment Agreement and Restrictive Covenant Agreement
("Agreement") by and between John M. Cook ("Executive") and PRG-Schultz USA,
Inc., a Georgia corporation ("USA"), is entered into this 7th day of March,
2005.
WHEREAS, Executive and USA entered into that certain Employment Agreement,
dated as of March 20, 1996, as amended by the First Amendment to Employment
Agreement dated March 7, 1997, effective as of December 31, 1996, and as amended
by the Second Amendment to Employment Agreement dated September 17, 1997,
effective as of July 22, 1997, and as amended by the letter amendment dated May
1, 2002, and as amended by the letter dated March 7, 2003 ("Employment
Agreement"), which sets forth the terms of employment under which USA employed
Executive as President and Chief Executive Officer, for USA;
WHEREAS, Executive is a senior executive of USA whose services are
extremely valuable to USA;
WHEREAS, Executive has had and will have access to the valuable and
proprietary trade secrets of USA and its customers, and Executive has had and
will have close contact with the customers and Executives of USA;
WHEREAS, Executive and USA desire to enter into this Agreement to (a) alter
compensation amounts paid to Executive and to eliminate a provision in the
Employment Agreement requiring reduction of certain payments received following
a change of control, (b) provide PRG-Schultz International, Inc., a Georgia
corporation that owns all of the capital stock of USA ("PRGS") with reasonable
protection of the valuable trade secrets and confidential information of USA and
its customers, as well as the relationships between USA and its customers and
Executives, and (c) preserve the goodwill of PRGS for the benefit of the
shareholders in the event a change of control occurs;
WHEREAS, the amendments to the Employment Agreement set forth in Section 2
hereof were approved by the Compensation Committee of PRGS' Board of Directors
(the "Board") and the independent directors of the Board.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meaning specified:
"Business of USA" shall mean (a) audit services (i) to identify and recover
lost profits from any source, including, without limitation, payment errors,
missed or inaccurate discounts, allowances, or rebates, vendor pricing errors,
or duplicate payments and (ii) to identify expense containment opportunities;
(b) development and use of technology to provide such services; and (c)
provision of related consulting services.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Competing Business" shall mean any business engaging in the same or
substantially similar business as the Business of USA.
"Confidential Information" shall mean any confidential or proprietary
information relating to USA or its customers or affiliates that is not a Trade
Secret.
"Secret Information" means Confidential Information and Trade Secrets.
"Trade Secrets" shall mean information of USA, its affiliates or customers,
without regard to form, including, but not limited to, technical or nontechnical
data, a formula, a pattern, a compilation, a program, a device, a method, a
technique, a drawing, a design, a process, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers which is
not commonly known by or available to the public and which information: (a)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (b) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
"Works" shall mean any work of authorship, code, invention, improvement,
discovery, process, formula, code algorithm, program, system, method, visual
work, or work product, whether or not patentable or eligible for copyright, and
in whatever form or medium and all derivative works thereof, which are, have
been or will be created, made, developed, or conceived by Executive in the
course of employment with USA, with USA's time, on USA's premises, using USA's
resources or equipment, or relating to the Business of USA.
2. Employment Agreement Amendments
(a) Sections 1 (a) and 1(b) of Exhibit B to the Employment Agreement
are hereby deleted in their entirety and shall be replaced by the following:
"(a) Base Salary. Six Hundred Thousand and No/100 ($600,000.00) Dollars on
an annual basis ("Base Salary") shall be payable in accordance with the
Company's customary payroll procedures; provided, however, that the Compensation
Committee of the Board of Directors of the Company, with the consent of the
independent members of the Board, may by written consent or resolution increase,
but not decrease, such amount, and such increased amount shall be the new Base
Salary for all purposes hereunder; provided further, however that following that
date on which the first payment is made to Employee with respect to such
increased Base Salary, such increased Base Salary cannot be decreased without
the prior written consent of Employee.
(b) Bonus. Commencing with the Term Year beginning January 1,
2004, the Compensation Committee may set an annual Threshold, Target and/or
Stretch bonus ("Bonus") in an aggregate amount determined by the
Compensation Committee, not to exceed two hundred percent (200%) of
Employee's Base Salary, which Bonus shall be payable based solely upon the
attainment of such performance goals as the Compensation Committee shall
set, in its discretion."
(b) Section 4(h) of Exhibit B to the Employment Agreement is hereby deleted
in its entirety and replaced by the following:
"(h) (1) The following shall apply to any payments you receive upon a
Change of Control. If the Company or the Company's accountants determine that
the payments called for under this Agreement or any other payments or benefits
made available to the Employee by the Company or an affiliate of the Company
will result in the Employee being subject to an excise tax under Section 4999 of
the Code ("Excise Tax") or if an Excise Tax is assessed against the Employee as
a result of such payment or other benefits, the Company shall make a Gross-Up
2
Payment (as defined in this Section 4(h)) to or on behalf of the Employee as and
when such determination(s) and assessment(s), as appropriate, are made, subject
to the conditions of this Section 4(h). A "Gross-Up Payment" shall mean a
payment to or on behalf of the Employee that shall be sufficient to pay (1) any
Excise Tax in full, (2) any federal, state and local income tax and Social
Security or other employment tax on the payment made to pay such Excise Tax as
well as any additional Excise Tax on the Gross-Up Payment, and (3) any interest
or penalties assessed by the Internal Revenue Service on the Employee if such
interest or penalties are attributable to the Company's failure to comply with
its obligations under this Section 4(h) or applicable law. Any determination
under this Section 4(h) by the Company or the Company's accountants shall be
made in accordance with Section 280G of the Code and any applicable related
regulations (whether proposed, temporary or final) and any related Internal
Revenue Service rulings and any related case law. The Employee shall take such
action (other than waiving Employee's right to any payments or benefits) as the
Company reasonably requests under the circumstances to mitigate or challenge
such tax. If the Company reasonably requests that the Employee take action to
mitigate or challenge, or to mitigate and challenge, any such tax or assessment
and the Employee complies with such request, the Company shall provide the
Employee with such information and such expert advice and assistance from the
Company's accountants, lawyers and other advisors as the Employee may reasonably
request and shall pay for all expenses incurred in effecting such compliance and
any related fines, penalties, interest and other assessments.
(2) Subject to the provisions of Section 4(h)(1), all determinations
required to be made under this Section 4(h), including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
the public accounting firm that is retained by the Company as of the date
immediately prior to the Change in Control (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and Employee within
thirty (30) business days of the receipt of notice from the Company or the
Employee that there has been a payment that could trigger a Gross-Up Payment, or
such earlier time as is requested by the Company (collectively, the
"Determination"). In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change in Control,
Employee may appoint another nationally recognized public accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be born solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder. The Gross-Up Payment under this Section 4
with respect to any Payments shall be made no later than sixty (60) days
following such Payments. If the Accounting Firm determines that no Excise Tax is
payable by Employee, it shall furnish Employee with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if any, on
Employee's applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. The Determination by the
Accounting Firm shall be binding upon the Company and Employee. As a result of
the uncertainty in the application of Section 4999 of the Code at the time of
the Determination, it is possible that Gross-Up Payments which will not have
been made by the Company should have been made ("Underpayment") or Gross-Up
Payments are made by the Company which should not have been made
("Overpayment"), consistent with the calculations required to be made hereunder.
In the event that the Employee thereafter is required to make payment of any
additional Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment (together with interest
at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly
3
paid by the Company to or for the benefit of Employee. In the event the amount
of the Gross-Up Payment exceeds the amount necessary to reimburse the Employee
for his Excise Tax, the Accounting Firm shall determine the amount of the
Overpayment that has been made and any such Overpayment (together with interest
at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid
by Employee to or for the benefit of the Company. Employee shall cooperate, to
the extent Employee's expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax."
(c) Section 4(i) to Exhibit B of the Employment Agreement and Sections 6,
7, 8, 9 and 10 of the Employment Agreement are hereby deleted in their entirety.
(d) The second sentence of Section 11(a) of the Employment Agreement is
hereby amended by striking the phrase "or engaging in activities prohibited by
Sections 6, 7, 8, or 9 hereof" and replacing such language with the phrase "or
engaging in activities prohibited by Sections 4 through 10 of that certain
Amendment to Employment Agreement and Restrictive Covenant Agreement by and
between Executive and USA, dated March 7, 2005."
3. Acknowledgement of Restrictive Covenant Consideration. Executive
acknowledges and agrees that $2,851,000.00 (the "Restrictive Covenant
Consideration") of the aggregate value of all amounts that USA has agreed to pay
Executive pursuant to the Employment Agreement as a result of termination of his
employment, is being paid in consideration of Executive's agreement to Sections
8, 9 and 10 below. Moreover, Executive acknowledges and agrees that the
Restrictive Covenant Consideration is subject to forfeiture in accordance with
Section 11(b) hereof in the event Executive breaches any of the covenants set
forth in Section 8, 9 or 10 hereof.
4. Confidentiality. Executive covenants and agrees that, during and after
his employment by USA, he will treat as confidential and will not, without the
prior written approval of USA, use (other than in the performance of his
designated duties for USA) or disclose the Trade Secrets or Confidential
Information; provided, the foregoing obligation with respect to Confidential
Information shall expire five years after termination of Executive's employment
by USA.
5. Records. All records, notes, files, recordings, tapes, disks, memoranda,
reports, price lists, client lists, drawings, plans, sketches, documents,
equipment, apparatus, and like items, and all copies thereof, relating to the
business of USA or its affiliates or the Secret Information, which shall be
prepared by Executive or which shall be disclosed to or which shall come into
the possession of Executive, shall be and remain the sole and exclusive property
of USA. Executive agrees that at any time upon request from USA, to promptly
deliver to USA the originals and all copies of any of the foregoing that are in
the Executive's possession, custody or control
6. Executive Inventions.
(a) Ownership of Works. All Works shall be the sole and absolute
property of Company, including all patent, copyright, trade secret, or other
rights in respect thereof. Executive agrees to and hereby does assign to Company
all right, title, and interest in and to any and all Works, including all
worldwide copyrights, patent rights, and all trade secret information embodied
therein, in all media and including all rights to create derivative works
thereof. Executive waives any and all rights Executive may have in any Works,
including but not limited to the right to acknowledgement as author or moral
4
rights. Executive agrees not to use or include in Works any patented,
copyrighted, restricted or protected code, specifications, concepts, or trade
secrets of any third party or any other information that Executive would be
prohibited from using by any confidentiality, non-disclosure or other agreement
with any third party. Executive agrees to fully and promptly disclose in writing
to USA any such Works as such Works from time to time may arise.
(b) Further Assurances. Executive shall, without charge to USA other
than reimbursement of Executive's reasonable out-of-pocket expenses, execute and
deliver all such further documents and instruments, including applications for
patents and copyrights, and perform such acts, at any time during or after the
term of this Agreement as may be necessary or desirable, to obtain, maintain,
and defend patents, copyrights, or other proprietary rights in respect of the
Works or to vest title to such Works in USA, its successors, assigns, or
designees. Without limiting the generality of the foregoing, Executive further
agrees to give all lawful testimony, during or after the term of Executive's
employment, which may be required in connection with any proceedings involving
any Works so assigned by Executive. Executive agrees to keep and maintain
adequate and complete records (in the form of notes, laboratory notebooks,
sketches, drawings, optical drives, hard drives and as may otherwise be
specified by USA) of all inventions and original works of authorship made by
Executive (solely or jointly with others) in the course of employment with
Company, with USA's time, on USA's premises, or using USA's resources or
equipment, which records shall be available to and remain the sole property of
USA at all times.
(c) No Obligations to Third Parties. Executive represents and warrants
to USA that Executive is not subject to any employment, non-disclosure,
confidentiality, non-compete, or other agreement with any third party which
would prevent or prohibit Executive from fulfilling Executive's duties for USA.
If Executive is the subject of any such agreement, and has any doubt as to its
applicability to Executive's position with USA, Executive will provide a copy of
such agreement to USA so that USA can make a determination as to its effect on
Executive's ability to work for USA. Executive agrees to notify the company in
writing before making any disclosure or perform any work on behalf of USA which
appears to threaten or conflict with any proprietary rights Executive claims or
intends to claim in any invention or original work of authorship. In the event
Executive fails to give such notice, Executive agrees that he will make no claim
against USA with respect to any such invention or work of authorship.
7. Cooperation. Executive agrees to cooperate at any time to the extent and
in the manner requested by USA and at USA's expense, in the prosecution or
defense of any claims, litigation or other proceeding involving the Works, the
property of USA or the Secret Information. Executive agrees to diligently
protect any and all Secret Information against loss by inadvertent or
unauthorized disclosure. Executive will comply with regulations, policies, and
procedures established by USA, including, without limitation, all regulations,
policies, and procedures established for the purpose of protecting Secret
Information.
8. Agreement Not to Compete. Executive covenants and agrees that during his
employment by USA and for a period of two years after termination, for any
reason, of such employment, he will not, without the prior written consent of
USA, within Fulton County, Georgia, for himself or on behalf of another,
directly or indirectly, engage in any business for which he provides services
which are the same or substantially similar to his services for USA (as
described in the Employment Agreement) to or on behalf of a Competing Business.
Executive acknowledges and agrees that Fulton County, Georgia is the geographic
5
area within which the Executive performs services for the Company.
9. Agreement Not to Solicit Customers. During Executive's employment by USA
and for a period of two years after the termination of such employment for any
reason, whether by USA or by Executive, with or without Cause or Good Reason,
Executive will not, without the prior written consent of USA, directly or
indirectly, on Executive's own behalf or in the service or on behalf of others,
solicit or attempt to divert or appropriate to a Competing Business, any
customer or actual prospect of USA, in either case, with whom Executive dealt on
behalf of USA at any time during the 12-month period immediately preceding the
termination of employment.
10. Agreement Not to Solicit Executives. During Executive's employment by
USA and for a period of two years after the termination of such employment for
any reason, whether by USA or by Executive, with or without Cause or Good
Reason, Executive will not, without the prior consent of USA, directly or
indirectly, on Executive's own behalf or in the service or on behalf of others,
solicit, divert or recruit any Executive of USA to leave such employment,
whether such employment is by written contract or at will.
11. Consideration; Remedies.
(a) Injunctive Relief. Executive acknowledges and agrees that, by
virtue of the duties and responsibilities attendant to his employment by USA and
the special knowledge of USA's affairs, business, clients, and operations that
he has and will have as a consequence of such employment, irreparable loss and
damage will be suffered by USA if Executive should breach or violate any of the
covenants and agreements contained in Sections 4 through 10. Executive further
acknowledges and agrees that each of such covenants is reasonably necessary to
protect and preserve the business of USA. Executive, therefore, agrees and
consents that, in addition to any other remedies available to it, USA shall be
entitled to an injunction to prevent a breach or contemplated breach by the
Executive of any of the covenants or agreements contained in such Sections.
(b) Forfeiture. Executive acknowledges that USA intends to enforce the
terms of the restrictive covenants of this Agreement contained in Sections 8, 9
and 10. In the event Executive breaches the provisions of Sections 8, 9 and 10,
Executive shall immediately forfeit his right to receive (or shall refund to USA
or its successor to the extent Executive has been previously paid) the value of
the portion of the Restrictive Covenant Consideration allocable to the portion
of the two year time period ($3905.47 per day of violation, capped at amounts
actually received by Executive) during which Executive is in violation of any of
such Sections 8, 9, or 10. Executive acknowledges that the actual damages for
any such breach are costly and difficult to estimate and the amount required to
be refunded or forfeited by this Section 11(b) is a reasonable estimation of
such damages. The parties agree that such forfeited or refunded amount is
intended as liquidated damages and not as a penalty. The parties also agree that
the remedies set forth in this Section 11(b) are in addition to other remedies,
including equitable remedies.
(c) No Defense; Remedies. The existence of any claim, demand, action
or cause of action of Executive against USA or its affiliates, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by USA of any of the covenants contained herein. The rights of
USA under this Agreement are in addition to, and not in lieu of, all other
rights USA may have at law or in equity to protect its confidential information,
trade secrets and other proprietary interests.
6
12. Severability; Construction. Each covenant of this Agreement shall be
deemed and shall be construed as a separate and independent covenant, and should
any part or provision of any such covenants be declared invalid by any court of
competent jurisdiction, such invalidity shall in no way render invalid or
unenforceable any other part or provision thereof or any other separate covenant
of Executive not declared invalid. Whenever there is a conflict between an
applicable law of a jurisdiction which governs the subject matter of this
Agreement and any provision of this Agreement, the affected portions of this
Agreement shall be deemed revised, as to such jurisdiction only, in a manner
which (i) eliminates any invalid, illegal or completely unenforceable provision,
and (ii) as to any provision which is held to be excessively broad as to time
duration, scope, activity or subject, limits or reduces such provision so as to
be enforceable to the extent compatible with the applicable law.
13. Notices. Any notice required or permitted to be given to one party by
the other party hereto pursuant to this Agreement shall be in writing and shall
be personally delivered (including delivery by overnight or express courier), or
sent by United States Mail, certified or registered, return receipt requested,
first class postage and charges prepaid, in envelopes addressed to the parties
as set forth below their signatures or at such other addresses as shall be
designated in writing by either party to the other party in accordance with this
Section. Notices delivered in person shall be effective on the date of delivery.
Notices sent by United States Mail shall be effective on the third day following
deposit.
14. Amendment. No amendment or modification of this Agreement shall be
valid or binding upon either party unless made in writing.
15. Waiver. The waiver by one party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision by the other party.
16. Attorneys' Fees. If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, and expenses in addition to any other relief
to which such prevailing party may be entitled.
17. Gender. All references included herein to the male gender shall be
construed to include the female gender, if and as appropriate.
18. Assignment; Benefit. This Agreement may not be assigned by Executive
and shall be binding upon Executive's devisees, heirs, legatees, beneficiaries,
executors, administrators, or other legal representatives. This Agreement may be
assigned by USA, and the right, remedies, and obligations of USA shall inure to
the benefit of and be binding upon its successors and assigns.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the matters contained herein and, subject to
the following sentence, supersedes and terminates all previous agreements with
respect to the matters contained herein. Except as amended in Section 2 hereof,
all other terms of the Employment Agreement shall remain unchanged.
[SIGNATURES ON FOLLOWING PAGE]
7
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
EXECUTIVE:
/s/ John M. Cook Date: 3/7/05
- -----------------------------------------
John M. Cook
Address: 40 Cates Ridge
Atlanta, GA 30327
"USA":
PRG-SCHULTZ USA, INC.:
By: /s/ Gerald E. Daniels Date: 8 FEB 2005
-------------------------------------
Title: Chairman, Comp. Comm.
Address: 600 Galleria Parkway
Suite 100
Atlanta, Georgia 30339
Attention: Marie Neff, Executive
Vice President-Human Resources
8