AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 30th day of
June, 1999, by and between Douglas K. Mellinger (hereinafter referred to as
"Executive") and PRT Group Inc. (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, Executive has been employed by the Company as Chairman
and Chief Executive Officer of the Company;
WHEREAS, Executive and the Company are parties to an Employment
Agreement, dated as of November 21, 1996, a copy of which is attached
hereto as Exhibit A (hereinafter referred to as the "Employment
Agreement");
WHEREAS, Executive and the Company have agreed that Executive's
employment as an officer of the Company shall terminate on the date hereof
(hereinafter referred to as the "Effective Date"); and
WHEREAS, Executive and the Company have negotiated and reached an
agreement with respect to the rights, duties and obligations arising
between them, including, but in no way limited to, the rights, duties and
obligations that have arisen or might arise out of or are in any way
related to the Employment Agreement or Executive's employment as an officer
of the Company and the conclusion of that employment.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Termination.
(a) Other than as a member of the Board of Directors of the
Company (the "Company Board"), Executive will, and hereby does, resign his
positions as Chairman of the Company Board and Chief Executive Officer and
any other office that he has been appointed to and now occupies with the
Company and any of the Company's affiliates and shall submit a letter of
resignation in the form attached hereto as Exhibit B upon the signing of
this Agreement. Upon the Company's request, Executive shall execute any
additional documents necessary to effect such resignation. Notwithstanding
the foregoing, Executive shall continue as a non-officer employee of the
Company during the Salary Continuation Period (as hereinafter defined).
During the Salary Continuation Period, Executive shall have no duties,
authority or time commitments to the Company, except that Executive shall
in such capacity make himself reasonably available to consult with the
senior officers of the Company, at the Company's expense, for consultation
from time to time as reasonably requested by the Company during the Salary
Continuation Period at such times and on such terms and with reasonable
notice as will not unreasonably interfere with Executive's other
activities. As of the Effective Date Executive shall no longer be
authorized to incur any expenses, obligations or liabilities on behalf of
the Company. Unless otherwise specified, as used in this Agreement, the
term "affiliates" shall include the Company or any subsidiary, joint
venture, division or organization of the Company.
(b) This Agreement shall supercede and terminate the Employment
Agreement, which shall hereafter be null and void and of no further force
or effect.
2. Company Board. As of the Effective Date Executive shall
continue as a director of the Company and shall be appointed as Non-
Executive Chairman of the Company Board to serve as Non-Executive Chairman
of the Company Board subject to the continued reasonable approval of the
Company Board until the earlier to occur of (i) the end of the Salary
Continuation Period, (ii) Executive's acceptance of employment with a
corporation or other entity primarily engaged in the information technology
services industry, or (iii) such time as Executive is no longer a director
of the Company. The Company Board shall promptly take all corporate action
necessary to carry out the foregoing. As Non-Executive Chairman of the
Company, Executive shall not be authorized to incur any expenses,
obligations or liabilities on behalf of the Company or, except in his
capacity as a director of the Company, to otherwise direct the affairs or
management or operations of the Company in any manner. Except as set forth
in Section 3 hereof, the Company will not be obligated to pay Executive any
additional compensation of any kind for his services as Non-Executive
Chairman or as a director of the Company, except that after Executive is no
longer an employee of the Company, Executive shall receive such
compensation as the Company shall pay to its other non-employee directors.
Executive shall also be entitled to reimbursement of expenses as a director
in accordance with the policies of the Company with respect to its
directors.
3. Salary and Benefits.
(a) The Company will pay Executive from the Effective Date
through October 1, 2000 (the "Salary Continuation Period"), the amount of
$250,000 per year, in equal bi-monthly installments in accordance with the
Company's normal payroll practices (collectively, the "Salary Continuation
Payments"), less all applicable withholding taxes. The Salary Continuation
Payments shall commence on June 30, 1999, and the final payment shall be
made on September 30, 2000.
(b) The Company will continue at its sole expense to provide to
Executive all medical, dental, life, and disability benefits provided to
Executive on the Effective Date in accordance with the Company's normal
practices until the earlier to occur of the end of the Salary Continuation
Period and such date as Executive shall begin paid employment with any
corporation, non-profit organization or other entity, other than the
Company, provided that such corporation, non-profit organization or other
entity provides Executive reasonably comparable medical, dental, life, and
disability benefits, in the aggregate.
(c) Except as set forth below in paragraph 3(d) with respect to
Executive's participation in the Company's Amended and Restated 1996 Stock
Incentive Plan (the "Company Option Plan"), and other than as specifically
set forth in this Agreement, Executive is not due under any contract,
agreement or understanding, oral or in writing, any compensation, including
compensation for unpaid salary, unpaid bonus, or accrued or unused vacation
or sick time or vacation or sick pay from the Company or any of its
affiliates, and as of the Effective Date, except as provided herein, he
shall not be eligible to participate in any of the benefit plans of the
Company or any of its affiliates or otherwise be entitled to any perquisite
therefrom, including, without limitation, continued participation in the
Company's incentive compensation plan, use of any Company owned apartment
or home, including, without limitation, those located in New York City and
Barbados, West Indies, or reimbursement for any expenses whatsoever,
including, without limitation, reimbursement for any travel, cellular or
wireless telephone costs, any Internet or network access costs,
subscription for any periodical, membership in any organization,
professional club or association, or any travel or other costs associated
with any such membership; provided, that, Executive shall be entitled to
receive benefits that are vested, or would become vested under Section 2(b)
of the Employment Agreement, and accrued prior to the Effective Date
pursuant to the benefit plans of the Company or its affiliates.
Notwithstanding the foregoing, Executive shall be entitled during the
Salary Continuation Period to (i) participate in the Company's 401(k) plan,
and (ii) $2,000 per month automobile allowance. Executive shall return to
the Company all Company credit cards on the date hereof; any charges
thereon billed on or after June 30, 1999 shall be borne by Executive.
Executive has returned or shall within five (5) days return to the Company
all Company paid cellular and/or other wireless telephones and beepers;
provided, that Executive may retain the cellular telephone provided to him
by the Company if Executive transfers billing for all costs associated
therewith to Executive within 30 days after the Effective Date and the
Company shall have no obligations to make any payments therefor. Executive
shall be entitled to retain possession of, and shall hereby receive title
to, the computer and other office equipment provided to Executive located
at the home of Executive to the extent such equipment is specifically set
forth on Exhibit C hereto; provided, that Executive agrees to return any
other equipment owned by the Company not set forth on Exhibit C.
(d) As of the Effective Date, Executive shall no longer be
eligible to receive additional stock options ("Options") under the Company
Option Plan. All Options granted to Executive under the Company Option
Plan prior to the Effective Date shall remain in effect in accordance with
their terms, including any applicable vesting periods. Executive agrees
that each Option and any warrant or other right to purchase shares of
Company common stock held by Executive on the date hereof shall terminate
and be of no further force or effect on the earlier to occur of (i) the
date 90 days after the end of the Salary Continuation Period and (ii) the
date on which each of such Options, warrants or other rights shall expire
in accordance with its terms.
(e) Until August 31, 1999, Executive shall be provided with the
services and assistance of Brian Hurwitz for not more than an aggregate of
two (2) work days per week.
4. Confidentiality.
(a) At all times hereafter, Executive shall maintain the
confidentiality of all confidential information in whatever form concerning
the Company or any of its affiliates relating to its or their businesses,
customers, finances, strategic or other plans, marketing, employees, trade
practices, trade secrets, know-how or other matters that are not publicly
known outside the Company, and Executive shall not, directly or indirectly,
make any disclosure thereof to anyone, or make any use thereof, on his own
behalf or on behalf of any third party, unless specifically requested by or
agreed to in writing by an executive officer of the Company; provided, that
Executive may divulge, discuss or provide confidential information to the
extent Executive is compelled by law to do so and, in such event, Executive
shall notify the Company immediately upon any request or demand for
information, but in any event, no later than two working days after
Executive first receives notice of such request or demand. Neither
Executive nor his counsel shall voluntarily comply with any such request or
demand prior to providing the Company to the extent possible with an
opportunity to seek a protective order or pursue any other appropriate
remedy. For the purposes of this Agreement, confidential information shall
not include information which (i) is known to the public prior to the
communication thereof by Executive, (ii) becomes known to the public
thereafter other than through communications by Executive, or (iii) becomes
known to Executive subsequent to the end of the Salary Continuation Period.
(b) Executive has returned or shall within five (5) days return
to the Company all cardkey passes, network tokens or cards (other than
Executive's Secure ID network token, which shall be returned within five
(5) days of termination of Executive's e-mail account at the Company), door
and file keys, and all confidential reports, files, memoranda, records,
software, computer access codes or disks and instructional manuals and
other physical or personal property that he received or prepared or helped
prepare in connection with his employment with the Company and its
affiliates and in Executive's possession, and Executive has not retained
and shall not retain any copies, duplicates, reproductions or excerpts
thereof. Notwithstanding the last sentence of Section 3(c) hereof,
Executive shall delete all confidential information of the Company on any
storage media and computer equipment provided by the Company to Executive,
shall destroy or return to the Company any copies thereof in any format or
media, and all network or Internet based connections of such computer
equipment to the computer network systems of the Company shall be
terminated as soon as reasonably practicable after the Effective Date. In
addition, Executive's access to (i) his e-mail account at the Company, and
(ii) the Company's voice mail system shall each be terminated ninety (90)
days after the Effective Date; provided, that, in order for Executive to
make an orderly transition, all e-mail delivered to Executive at his former
e-mail address at the Company shall be forwarded for a period of 90 days
from termination of access to an e-mail account designated by Executive.
In connection with the foregoing, the Company shall use its commercially
reasonable efforts to ensure that Executive's home office computer
equipment is capable of accessing such e-mail account.
5. No Solicitation. Other than Brian Hurwitz, for so long as
Executive is an employee or director of the Company, Executive shall not,
directly or indirectly, solicit, entice, persuade or induce (or authorize
or assist in the taking of any such actions by any third party) any
employee, agent or independent contractor of the Company or its affiliates
with a view to inducing or encouraging such employee, agent or independent
contractor to leave the employ of the Company or its affiliates or
otherwise terminate the agency or independent contractor relationship with
the Company for the purpose of being hired by Executive or any other
person.
6. Non-disclosure; Non-disparagement.
(a) Each of the Company and Executive agrees to keep the
circumstances concerning this Agreement and its terms, as well as any
negotiations and correspondence relating thereto, confidential and not to
disclose the same to any person, except as may be required by either party
to enforce this Agreement or to obtain legal or tax advice, or except as
may be required by law.
(b) Executive shall not disparage, orally or in writing, the
performance of the Company, the Company Board, any director of the Company,
any specific former or current officer of the Company or the Company's
management individually or as a group to any person.
(c) Neither the Company, nor any of its directors or officers,
shall disparage, orally or in writing, Executive.
7. Legal Counsel. The Company has advised Executive to consult
with an attorney of his choosing prior to the signing of this Agreement and
Executive hereby represents to the Company that he has consulted with an
attorney prior to the execution of this Agreement.
8. Cooperation. Executive agrees that, upon the reasonable
request, and at the expense, of the Company, Executive will cooperate in
good faith in any litigation to which the Company is a party and as to
which the Executive has relevant information or materials.
9. Legal Fees. The Company agrees to pay up to $25,000 of
reasonably documented legal fees of Executive incurred in connection with
the negotiation of this Agreement, as well as the related Agreement to be
entered into between Gregory S. Mellinger and the Company, and certain
other agreements related thereto, each of which are being entered into on
the date hereof.
10. Loan Forgiveness. In connection with the execution of this
Agreement, certain loans by the Company to Executive, totaling $28,638.62
in the aggregate, shall be forgiven as of the Effective Date. In addition,
in connection with the execution of this Agreement, certain loans by the
Company to The Mellinger Group L.L.C., of which Executive is a member,
totaling $14,744.00 in the aggregate, shall be forgiven as of the Effective
Date.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed and
enforced under the laws of the State of New York, without regard to its
conflict of laws rules.
(b) In the event that any one or more of the provisions of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
(c) Each of the Company and Executive acknowledges and agrees
that the other party would suffer irreparable injury in the event of a
breach or violation or threatened breach or violation of the provisions set
forth in Sections 4, 5 or 6(a) hereof. Each of the Company and Executive
agrees that, in the event of an actual or threatened breach or violation of
such provisions, the non-breaching party shall be awarded injunctive relief
in a court of appropriate jurisdiction to prohibit or remedy any such
violation or breach or threatened violation or breach, without the
necessity of posting any bond or security, and such right to injunctive
relief shall be in addition to any other right or remedy available to the
Company or Executive.
(d) Any notice to be given hereunder shall be in writing and
shall be deemed given when mailed by certified mail, return receipt
requested, addressed as follows:
To Executive at:
__________________
__________________
To the Company at:
PRT Group Inc.
7 Skyline Drive
Hawthorne, NY 10532
Attention: General Counsel
(e) This Agreement sets forth the entire agreement between the
parties hereto with respect to the subject matter hereof and may not be
amended or altered without the written consent of the parties. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof, including, but not
limited to, the Employment Agreement, which Employment Agreement shall be
of no further force or effect. The parties may execute this Agreement in
counterparts.
(f) This Agreement is intended to be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
DOUGLAS K. MELLINGER PRT GROUP INC.
/S/ Douglas K. Mellinger By: /S/ Dan S. Woodward
- ------------------------- -----------------------
Name: Dan S. Woodward
Title: President
EXHIBIT A
Employment Agreement
EXHIBIT B
June 30, 1999
Board of Directors
PRT Group Inc.
342 Madison Avenue
New York, New York 10173
Re: Letter of Resignation
Gentlemen:
Effective as of June 30, 1999, I am resigning as Chief Executive
Officer of, and from all other offices that I have been appointed or
elected to and now occupy with, PRT Group Inc. (the "Company") and any of
its respective affiliates, subsidiaries, joint ventures, divisions or
organizations. However, I am not resigning as a director of the Company
and intend to continue as the non-executive chairman of the board of
directors of the Company.
Very truly yours,
Douglas K. Mellinger