Exhibit 10.11
CORRECTION TO
CHANGE OF CONTROL AND RESTRICTIVE
COVENANT AGREEMENT
This Correction to Change of Control and Restrictive Covenant Agreement
("Correction") is entered into this 13th day of April, 2005 by and among John M.
Toma ("Executive"), PRG-Schultz USA, Inc., a Georgia corporation ("USA"), and
PRG-Schultz International, Inc., a Georgia corporation that owns all of the
capital stock of USA ("PRGS").
WHEREAS, Executive and USA executed that certain Change of Control and
Restrictive Covenant Agreement dated February 14, 2005 ("Change of Control
Agreement"), under which (among other things) (i) USA granted Executive an
opportunity to earn a "Transaction Success Fee"; (ii) PRGS granted Executive
40,000 shares of restricted stock; and (iii) the parties agreed to new
restrictive covenants; and
WHEREAS, the parties intended that the Change of Control Agreement should
revise the definition of the term "Good Reason" in Executive's pre-existing
Employment Agreement to generally be consistent with that of USA's other key
officers, but neither party intended for Executive's right to termination
payments upon a "Change of Control" (as that term was defined in Mr. Toma's
pre-existing Employment Agreement, and not as defined in the Change of Control
Agreement) to be curtailed or otherwise altered; and
WHEREAS, the resolutions of the Compensation Committee and the independent
directors of PRGS authorized the revision of the definition of the term "Good
Reason" to be generally consistent with that of USA's other key officers, but
did not authorize a curtailment or alteration in Executive's termination
payments upon a "Change of Control"; and
WHEREAS, the parties have determined to execute this Correction to reflect
the true agreement of the parties, and to reflect the intent of, and authority
granted by, the Compensation Committee and the independent directors regarding
Mr. Toma's continuing entitlement to a termination payment upon a "Change of
Control";
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 4(b) of the Change of Control Agreement is hereby deleted in
its entirety and replaced by the following:
"(b) Section 11(c) of the Employment Agreement is hereby deleted in
its entirety and replaced by the following:
`(c) This Agreement may be terminated by Employee for Good
Reason upon thirty (30) days prior written notice of termination
served personally in accordance with Section 15 hereof, at the
address of the Company's then-current principal executive offices,
such Good Reason
being specified in the notice; provided that at the time of such
notice to the Company, there is no basis for termination by the
Company of Employee's employment for `cause.' For purposes of this
Agreement (and not for purposes of any provision of the Change of
Control Agreement apart from Section 4 thereof), `Good Reason' shall
have the meaning ascribed to such term in the Change of Control
Agreement, except that such `Good Reason' definition shall also
include the event that there is a `Change of Control' (as defined
below) of PRG-Schultz International, Inc. (`PRGS'). For purposes of
this Agreement (and not for purposes of any provision of the Change
of Control Agreement apart from Section 4 thereof), a `Change of
Control' shall have occurred if:
(A) a majority of the directors of PRGS shall be persons
other than persons:
(1) for whose election proxies shall have been
solicited by the board; or
(2) who are then serving as directors appointed by
the board to fill vacancies on the board caused by death
or resignation, but not by removal, or to fill
newly-created directorships; or
(B) a majority of the outstanding voting power of PRGS
shall have been acquired or beneficially owned by any person
(other than PRGS or a subsidiary of PRGS) or any two or more
persons 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 PRGS; or
(C) there shall have occurred:
(1) a merger or consolidation of PRGS with or into
another corporation, other than (1) a merger or
consolidation with a subsidiary of PRGS or (2) a merger
or consolidation in which the holders of voting stock of
PRGS immediately prior to the merger as a class hold
immediately after the merger at least a majority of all
outstanding voting power of the surviving or resulting
corporation or its parent; or
(2) a statutory exchange of shares of one or more
classes or series of outstanding voting stock of PRGS
for cash, securities or other property, other than an
exchange in which the holders of voting stock of PRGS
immediately prior to the exchange as a class hold
immediately after the exchange at least a majority of
all outstanding voting power of the entity with which
the PRGS stock is being exchanged; or
2
(3) the sale or other disposition of all or
substantially all of the assets of PRGS, in one
transaction or a series of transactions, other than a
sale or disposition in which the holders of voting stock
of PRGS immediately prior to the sale or disposition as
a class hold immediately after the exchange at least a
majority of all outstanding voting power of the entity
to which the assets of PRGS are being sold; or
(4) the liquidation or dissolution of PRGS.'"
2. This Correction shall inure to the benefit of, and be binding upon, the
respective legal representatives, successors, and assigns of the parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
3
IN WITNESS WHEREOF, the undersigned have executed this Correction as of
the date set forth above.
EXECUTIVE:
/s/ John M. Toma Date: April 13, 2005
- ------------------------------------ -----------------------
John M. Toma
Address:
----------------------------
----------------------------
"USA":
PRG-SCHULTZ USA, Inc.
By: /s/ John M. Cook Date: April 13, 2005
-------------------------------- -----------------------
Title: Chairman and CEO
-----------------------------
Address: 600 Galleria Parkway
Suite 100
Atlanta, Georgia 30339
Attention: Marie Neff, Executive Vice President-Human Resources
"PRGS":
PRG-SCHULTZ INTERNATIONAL, Inc.
By: /s/ John M. Cook Date: April 13, 2005
-------------------------------- -----------------------
Title: Chairman and CEO
-----------------------------
Address: 600 Galleria Parkway
Suite 100
Atlanta, Georgia 30339
Attention: Marie Neff, Executive Vice President-Human Resources
4